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2002 DIGILAW 432 (CAL)

M. M. YUNUS v. CALCUTTA TRAMWAYS COMPANY LTD

2002-07-05

SUBHRO KAMAL MUKHERJEE

body2002
S. K. MUKHERJEE, J. ( 1 ) THIS is a plaintiffs' second appeal against judgment and decree dated May 15, 1987 passed by the learned Additional District Judge, sixth Court at Alipore, District: 24 Parganas in Title Appeal No. 818 of 1985 affirming the judgment and decree dated August 16, 1985 passed by the learned Munsif, fifth Court at Alipore, District: 24 Parganas in Title Suit No. 50 of 1981. ( 2 ) ON January 16, 1981 the plaintiff/appellants instituted a suit for ejectment and damages against the Calcutta Tramways Company Limited in the Court of the learned Munsif, fifth Court at Alipore, District: 24 Parganas. It is contended in the plaint of the said suit that the said plaintiffs were the owners of the premises No. 1/2d, Ashu Babu Lane, Police Station: Watgang, Calcutta-23 and the defendant was a tenant under the said plaintiffs in respect of the whole premises. The said suit was instituted, inter alia, on the grounds of default, damages and reasonable requirement. It is contended that a notice to suit dated October 1, 1980 was sent by the learned advocate for the plaintiffs asking the defendant to quit, vacate and deliver vacant possession of the suit premises on the expiry of the month of December 1980. The said notice was accepted by the defendant, but the defendant did not comply with the requisitions of the said notice compelling the plaintiffs to institute the said suit. ( 3 ) IN the said suit the defendant did not appear, but, on March 26, 1981, an application was filed on behalf of the undertaking of the Calcutta Tramways Company Limited praying for its addition as a party defendant in the said suit contending that in view of the provisions of the Calcutta Tramways Company (Acquisition of Undertaking) Act, 1976 the undertaking of the erstwhile Calcutta Tramways Company Limited has been transferred to and vested in the Government of West Bengal and the undertaking of the Calcutta Tramways Company Limited has been managed by an administrator appointed by the Government of West Bengal under the rules framed under the said Act. It is contended that the undertaking of the erstwhile Calcutta Tramways Company Limited has been transferred to and vested in the Government of West Bengal on November 8, 1976 and as such the said undertaking, represented by the administrator, was required to be added in the suit as a party defendant. ( 4 ) BY Order No. . . . . . . . . dated June 23, 1981 the learned Munsif allowed the said application for addition of party filed under Order 1, Rule 10 of the Code of Civil Procedure and added the said undertaking of the Calcutta Tramways Company Limited as a party defendant in the said suit. ( 5 ) IN the said suit, on February 15, 1983, another application was filed by the said added defendant contending that in view of the Calcutta Tramways Company (Acquisition of Undertaking) Act of 1976, as amended by Calcutta Tramways Company (Acquisition of Undertaking) (Amendment) Act, 1978, the said undertaking has been transferred to and vested in the Calcutta Tramways Company (1978) Limited with effect from February 1, 1983 by virtue of a notification dated January 27, 1983 issued by the Home (Transport) Department of the Government of West Bengal. Accordingly, a prayer was made for necessary permissions for deposing current rent from the month of January 1983 onwards in the name of the new company. ( 6 ) THE issue regarding maintainability of the suit was taken up for hearing as a preliminary issue and by the judgment and decree dated August 16, 1985 the learned Munsif dismissed the suit holding that the same was not maintainable in its present form. ( 7 ) THE plaintiffs preferred Title Appeal No. 818 of 1985 in the Court of the learned District Judge at Alipore, District: 24 Parganas. In the said suit the said plaintiffs/appellants impleaded only the defendant No. 1, that is, the Calcutta Tramways Company Limited, but did not implead the undertaking of the Calcutta Tramways Company Limited although the said undertaking was added as a party defendant in the said suit. ( 8 ) HOWEVER, Title Appeal No. 818 of 1985 was eventually transferred to the Court of the learned Additional District Judge, sixth Court at Alipore and by the judgment and decree dated May 15, 1987 the same was dismissed. ( 9 ) BEING aggrieved the plaintiffs have come up with this second appeal. ( 8 ) HOWEVER, Title Appeal No. 818 of 1985 was eventually transferred to the Court of the learned Additional District Judge, sixth Court at Alipore and by the judgment and decree dated May 15, 1987 the same was dismissed. ( 9 ) BEING aggrieved the plaintiffs have come up with this second appeal. ( 10 ) MR. Syama Prasanna Roychoudhury, learned senior advocate, appearing in support of the appeal, argued that the learned Judges in the Courts below were wrong in holding that the suit was not maintainable against the Calcutta Tramways Company Limited when it has been stated by the added defendant in their petition dated February 15, 1983 that the undertaking of the company has been transferred to and vested in the Calcutta Tramways Company (1978) Limited with effect from February 1, 1983. Mr. Roychoudhury argued that the suit was filed on January 16, 1981 and the same was pending on February 1, 1983 and as such under the provisions of section 4 (4) of the Calcutta Tramways Company (Acquisition of Undertaking) Act, 1976, the suit could be continued and proceeded with and enforced against the company. ( 11 ) IN order to appreciate the contentions raised by Mr. Roychoudhury it is necessary to take not of the history of the enactment of the Calcutta Tramways Company (Acquisition of Undertaking) Act, 1976. ( 12 ) IN order to provide for the acquisition of the undertaking of the Calcutta Tramways Company Limited for the purpose of ensuring better transport facilities to the members of the public and for matters connected therewith or incidental thereto, the State Government promulgated the Calcutta Tramways Company (Acquisition of Undertaking) Ordinance 1976 on November 8, 1976. The said Ordinance was followed by enactment of the Calcutta Tramways Company (Acquisition of Undertaking) Act, 1976 (West Bengal Act 54 of 1976) and under the said enactment the undertaking of the Calcutta Tramways Company Limited has been transferred to and vested in the State Government of November 8, 1976. The undertaking of the erstwhile Calcutta Tramways Company Limited, after transfer and vesting in the Government of West Bengal, was managed by an administrator appointed by the State Government under the rules framed under the said Act. The said Act of 1976 was amended by the Calcutta Tramways Company (Acquisition of Undertaking) (Amendment) Act, 1978 (West Bengal Act 73 of 1978 ). The said Act of 1976 was amended by the Calcutta Tramways Company (Acquisition of Undertaking) (Amendment) Act, 1978 (West Bengal Act 73 of 1978 ). In section 2 of the original Act two new sub-sections were added, namely, (bb) and (bbb ). The original section 3 was renumbered as section 3 (1) and section 3 (2) was inserted by way of amendment. Consequential amendments were made in the original sections 4 and 5. After section 5 of the original Act section 5a was inserted and consequential amendments were made in sections 6, 7, 9, 10 and 13 of the 1976 Act. It was provided by such amendments that the State Government might for the efficient management and administration of the undertaking of the company, provide by notification, for the transfer of such undertaking to and vesting thereof in the new company with effect from such dated as may be specified in the notification. It was provided, further, there should be formed and registered a Government company with the name of the Calcutta Tramways Company (1978) Limited in accordance with the provisions of the Companies Act, 1956. Thereafter, the Calcutta Tramways Company (1978) Limited was formed and registered and by a notification dated January 27, 1983 published by the Home (Transport) Department the Undertaking of the Calcutta Tramways Company Limited has been transferred to and vest in the said new Government company with effect from February 1, 1983. ( 13 ) THE present suit has been instituted on January 16, 1981, that is, long after enactment of the Calcutta Tramways Company (Acquisition of Undertaking) Act, 1976. By virtue of the aforesaid Act the undertaking of the erstwhile Calcutta Tramways Company Limited has been transferred to and vest in the State Government with effect from November 8, 1976 and the said undertaking of the Calcutta Tramways Company Limited was placed under the management of an administrator appointed by the State Government under the rules framed under the said Act. With the amendment of the said Act of 1976, by the Amendment Act of 1978, and, after formation and registration of the new Government company, namely, the Calcutta Tramways Company (1978) Limited, the undertaking of the Calcutta Tramways Company Limited has been transferred to and vest in the said new Government company with effect from February 1, 1983 by virtue of a notification dated January 27, 1983 issued by the Home (Transport) Department, Government of West Bengal issued under the provisions of the said Act of 1976, as amended by the Amendment Act of 1978. ( 14 ) THEREFORE, I am unable to accept the contention that on January 16, 1981 the suit was maintainable against the Calcutta Tramways Company Limited when the undertaking of the Calcutta Tramways Company Limited was transferred to and vested in the State Government with the promulgation of the Calcutta Tramways Company (Acquisition of Undertaking) Ordinance, 1976 on November 8, 1976. I, therefore, do not find any substance in this second appeal, which is accordingly dismissed without, however, any order as to costs. Xerox certified copy of this judgment and decree, if applied for, are to be supplied to the parties expeditiously. Appeal dismissed