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Calcutta High Court · body

2008 DIGILAW 208 (CAL)

K M C v. Derby Sales Pvt Ltd

2008-02-18

S.P.TALUKDAR, SURINDER SINGH

body2008
Judgment :- (1.) THE Court (ORAL): This appeal has been filed by the Kolkata Municipal corporation and another against the Order passed by the learned single judge dated 3rd of August 2006. (2.) THE Writ Petitioner-Respondent No. 1 herein is the owner of the premises known as 7/1a, Hazra Road, Kolkata-700019. These premises had been requisitioned in the year 1942 under the Defence of India Act, 1939. Possession was taken by the concerned authority on August 5, 1942. The requisition of the said premises was continued under the West bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as "the 1947 Act") and/or under the West bengal Requisitioned Land (Continuation of Powers) Act, 1951 (hereinafter referred to as "the 1951 Act"). (3.) AT the time of requisition one Paramananda Bose (hereinafter referred as the erstwhile owner) was the owner of the premises requisitioned. On 17th July, 1992 the erstwhile owner sold the premises to Rajarshi Dey. Thereafter, the premises were purchased by the present petitioner No. l on November 13, 2002. (4.) ON 29th October, 1992 the respondents derequisitioned the premises and directed respondent No. 3 whose staffs are occupying the same to hand over the requisitioned premises to the erstwhile owner on 19th November, 1992. However, the possession was not delivered to him on 19th November, 1992. By another order dated 16th January, 1993 the erstwhile owner was again requested to receive vacant possession of the premises on 28th January, 1993 from the surveyor and valuer Shri n. R. Mitra, who was posted in the office of Land Acquisition Collector, calcutta. However, again the possession was not delivered. (5.) BEING aggrieved against the inaction of the respondents in not implementing the order dated 29th of October, 1992 the writ petitioners filed the present writ petition. The main prayer in the writ petition is for the issuance of a writ in the nature of Mandamus directing the respondent authorities to deliver vacant and peaceful possession of the aforesaid requisitioned premises to the petitioners. We may also notice here that at the time when the matter was pending before the learned single Judge, the State chose not to file any affidavit-in-opposition. The kolkata Municipal Corporation (hereinafter referred to as K.M.C.) was not initially impleaded as a party to the writ petition. We may also notice here that at the time when the matter was pending before the learned single Judge, the State chose not to file any affidavit-in-opposition. The kolkata Municipal Corporation (hereinafter referred to as K.M.C.) was not initially impleaded as a party to the writ petition. At the time of hearing of the writ petition, before the learned single Judge, an oral prayer was made to implead the K. M. C. as a party. The prayer was accepted by the learned single Judge and K.M.C. has been impleaded as respondent No. 6. The K.M.C. had" duly filed an affidavit-in-opposition to which the petitioners had filed an affidavit-in-reply. By order dated 3rd august, 2006 the writ petition has been allowed and the respondents have been directed to hand over the possession of the premises to the 1st respondent within four weeks from date. While allowing the writ petition the learned single Judge concluded as under: (6.) THAT in view of the provisions in section 10b of the 1947 Act, the state Government was under the unqualified obligation to release property on or before the expiration of 25 years from the date of requisition. (7.) THAT the respondents were legally bound to implement the order dated October 28, 1992. (8.) THAT even if the matter is examined on the basis that the property was requisitioned under the Defence of India Act, 1939, the requisition could have only continued either under the 1947 act or the 1951 Act. (9.) AGGRIEVED against the aforesaid conclusions of the learned single judge the respondents have filed the present Letters Patent appeal. (10) THE learned counsel appearing for the appellants has submitted that even if the period of requisition has come to an end the respondents would be entitled to remain in possession as the State Government has the power to acquire the premises. In the present case, the property initially had been requisitioned to temporarily accommodate the employees of the Kolkata Municipal Corporation who had been employed for the purpose of developing the sewerage system of Kolkata. It would be an injustice in case these employees are now evicted from the houses in which they have been living for so many years. (11.) WE have considered the submissions made by the learned counsel for the parties. It would be an injustice in case these employees are now evicted from the houses in which they have been living for so many years. (11.) WE have considered the submissions made by the learned counsel for the parties. The Defence of India Act, 1939 was enacted to provide for special measures to ensure the public safety and interest and the defence of British India and the control of certain offences. It was an act which came into existence to deal with the emergency which had arisen as a consequence of the declaration of war i. e., World War-II. Section 1 (4) specifically provided that it shall be in force during the continuance of the present war and for a period of six months thereafter. It was further provided that the expiry of the Act "under the operation of this sub-section shall not affect inter alia any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule. " It was provided that "any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not expired. (12.) SECTION 2 (1) of this Act enables the Central Government to make such rules for securing the Defence of British India and for the public safety, the maintenance of public order or the efficient prosecution of war or for maintaining supplies and services essential to the life of the community. (13.) SECTION 2 (2) provides the rules may provide for, or may empower any authority to make orders providing for, all or any of the numerous matters listed therein. Section 2 (2) (XXIV) provides for requisitioning of any property movable or immovable, including the taking possession thereof and issue of any orders in respect thereof. The learned single judge has proceeded to decide the writ petition on the basis that the requisitioning order was issued under the 1939 Act, as admittedly possession of the premises was taken over by the authority on August 5, 1942. Since the premises had been requisitioned under the 1939 Act, the same was continued under the 1947 Act by virtue of the provisions contained in 1939 Act as noticed above. Since the premises had been requisitioned under the 1939 Act, the same was continued under the 1947 Act by virtue of the provisions contained in 1939 Act as noticed above. Under the 1947 Act the State government by virtue of the provisions contained in section 3 has the power to requisition any premises in any locality which are needed or likely to be needed for any public purpose. Section 10 of the Act empowers the State Government to release from requisition any premises no longer required for a public purpose. However, section 10a and 10b have been added to this Act after section 10 by the West Bengal Premises requisition and Control (Temporary Provisions) (Second Amendment)Act, 1986. The amendment came into force with effect from 31st March, 1987. Section 10a provides that an order under sub-section (1) of section 3 would remain valid and operative so long as the public purpose exists, section 10b provides as under: "s. 10b. Notwithstanding anything contained in section 10 or section 10a. The State Government shall release from requisition any property requisitioned or deemed to be requisitioned under this Act on or before the expiry of twenty-five years from the date of such requisition: provided that the benefit of this section shall not be available until after the expiry of a period of five years from the date of coming into force of the West Bengal Premises Requisition and Control (Temporary provisions) (Second Amendment) Act, 1986. " (14.) A bare perusal of section 10b would clearly show that the State government is bound to release from acquisition any property requisitioned on or before the expiry of 25 years from the date of such requisition. However, the benefit of the aforesaid provision would not be available until after the expiry of a period of five years from the date of coming into force of the 1986 Act. Therefore, the State Government would be bound to restore the requisitioned premises to the lawful owner with effect from 01. 04. 1992. The petitioners, therefore, were clearly entitled to claim that the premises be released from requisition with effect from 01. 04. 1992. (15.) WE may also notice here the relevant provisions of the 1951 Act. Therefore, the State Government would be bound to restore the requisitioned premises to the lawful owner with effect from 01. 04. 1992. The petitioners, therefore, were clearly entitled to claim that the premises be released from requisition with effect from 01. 04. 1992. (15.) WE may also notice here the relevant provisions of the 1951 Act. This Act was specifically enacted for the continuance of any requisition of the property which had been ordered under the 1939 Act and continued under the 1947 Act after the expiry of the 1939 Act. But even this Act provided that all requisitioned land shall continue to be subject to requisition until the expiry of the Act. Section 3 of the Act reproduce as under: "3. Continuance of Requisition-Notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder and the repeal of the Ordinance and the expiration of the period of operation of the Act in respect of the requisitioned lands, all requisitioned lands shall continue to be subject to requisition until the expiry of this Act and the State Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient: provided that the State Government may at any time release from requisition any requisitioned land. " (16.) HOWEVER, by virtue of section 1 (3) the 1951 Act was to come into force on the 1st of April, 1951 and was to cease to have effect on expiry of a period of thirty years from that date. Therefore, even under the 1951 act the requisitioned order ceased to have any effect with effect from 1st of April, 1981. Taking note of the aforesaid provisions the learned single Judge allowed the writ petition. (17.) WE are of the considered opinion that the learned single Judge has correctly held that the respondents were duty bound to implement the orders issued by the Land Acquisition Collector on 29th of October, 1992 directing the Commissioner of Kolkata to hand over the vacant possession to the erstwhile owner at 1 p. m. , Thursday, the 19th november, 1992. As noticed above the possession of the premises was, however, not handed over. As noticed above the possession of the premises was, however, not handed over. Thereafter, on 16th January, 1993 the Joint secretary to the Government of West Bengal issued an order in the name of the Governor, West Bengal, clearly stating that the premises of the petitioner had been requisitioned under sub-section (1) of section 3 of the 1947 Act. A copy of the order was forwarded to Paramananda Bose being the owner of the premises under requisition. He was requested to receive vacant possession of the property from the office of the surveyor and valuer, Land Acquisition Collector, Calcutta through Shri N.R. Mitra. Consequently, the petitioners approached the respondents for delivery of the vacant possession. However, no action was taken. We are of the considered opinion that the action of the respondents in not implementing the order dated 29th of October, 1992 and the order dated 16th January, 1993 is clearly arbitrary and illegal and could not have been justified under the provisions of law applicable in the facts and circumstances of the present case. (18.) IN our opinion, the Judgment of the learned single Judge not suffer from any illegality or error of jurisdiction. Even according to the learned counsel appearing for the appellants the property initially had been requisitioned to temporarily accommodate the employees of Kolkata municipal Corporation who had been employed for the purpose of developing the sewerage system of Kolkata. It is also not disputed that no acquisition proceedings have been commenced till date. Although learned counsel for the appellants had made a reference to a letter dated 31st August, 2007 written by the Joint Municipal Commissioner (Development) to the Land Acquisition Collector, Kolkata. The subject of the letter is placement of funds in connection with acquisition of the premises at 7/1a Hazra Road, Kolkata-700 019. In this letter a request is made that in view of the pendency of the present appeal, issuance of a notification under section 4 of the Land Acquisition Act, 1894 is urgently required. Mr. Chatterjee had very clearly stated that no notification under section 4 of the Land Acquisition Act has been issued even till today. (19.) WE, therefore, find no merit in the appeal. The appeal is dismissed. We, however, grant three months time to the Kolkata Municipal corporation to hand over vacant and peaceful possession of the property to the owner of the property. (19.) WE, therefore, find no merit in the appeal. The appeal is dismissed. We, however, grant three months time to the Kolkata Municipal corporation to hand over vacant and peaceful possession of the property to the owner of the property. Xerox certified copy of this Order be made available to the parties, if applied for, upon compliance of usual formalities. Appeal dismissed.