1973 Supreme(Cal) 81

HIGH COURT OF CALCUTTA
SANKAR PRASAD MITRA, SABYASACHI MUKHERJI
CORPORATION OF CALCUTTA - Appellant
Versus
DHIRENDRA NATH SEN - Respondent
AFOO 23  Of  1971
Decided On : MARCH 16, 1973

The proviso to Section 6 (1) (h) of the West Bengal Estates Acquisition Act, 1953 applies to service tenure lease held by the Sens and as such the action of the Corporation of Calcutta in passing the impugned resolution is sanctioned by the said provision.

Headnote:

WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTION 6 (1) (H) - PROVISO - APPLICABILITY - SERVICE TENURE LEASE - RIGHT OF OCCUPANCY - DELIVERY OF POSSESSION - NOTICE - REASONABLE TIME - TRANSFER OF PROPERTY ACT, 1882 - APPLICABILITY - CORPORATION OF CALCUTTA - RIGHT TO TAKE POSSESSION - UNILATERAL ACTION - VALIDITY - ARTICLE 226 OF THE CONSTITUTION - RIGHT TO MAINTAIN APPLICATION - LEGAL RIGHT - POSSESSION WITHOUT RIGHT - INTERFERENCE BY STATE OR LOCAL AUTHORITIES - RELIEF UNDER ARTICLE 226.

Fact of the Case:

The Sens, the respondents, were holding a substantial portion of the Dhapa land popularly known as "Dhapa Square Mile" as lessees under the Corporation of Calcutta. The lease was renewed for a further period of 22 years on 29th July, 1909. Thereafter by a resolution the lease was extended upto 31st December, 1930. On 1st April, 1936, a fresh lease (service tenure lease) was entered into for a period of 30 years in consideration of the Sens agreeing to perform the service of unloading refuse wagons free of charge and also to pay cash rent in addition to the service as provided in the said agreement, commencing from 1st April, 1936 between the Corporation of Calcutta and the Sens and their predecessors-in-interest with the option to the lessees to renew the lease for a further period of 20 years. Option mentioned in the said lease was stipulated to be exercised one year prior to the expiry of the lease. On 12th February, 1954 the West Bengal Estates Acquisition Act, 1953 came into force. Thereafter notice was served by the State of West Bengal on the Corporation of Calcutta and the Sens alleging that the said Dhapa land had vested in the State of West Bengal under the said Act and as such all rents due from and payable by the occupiers of the land should be paid to the State of West Bengal. In 1959 this notice was challenged by the Sens and the Corporation of Calcutta in two separate applications under Article 226 of the Constitution, being C. R. Nos. 1027 and 1132 of 1959 in this High Court. On 18th June, 1960, during the pendency of the said proceedings the Governor of West Bengal promulgated the Ordinance No. VI of 1960 amending Section 6 (1) (h) of the said West Bengal Estates Acquisition Act, 1953 by incorporating a proviso thereto. On 31st August, 1960, this Court by its judgment and order disposed of the said Writ Applications. The ordinance Was thereafter replaced by an Act. On 17th April, 1962 a formal Deed was executed between the parties which was with effect from 1st April, 1936. On 8th February, 1965, the Sens claim to have exercised their option of renewal as contained in the said lease dated 17-4-1962, for a further period of 20 years and requested the Corporation of Calcutta to renew the said lease accordingly. On 24th March, 1965 a resolution of the Standing Town and Planning Improvement Committee of the Corporation of Calcutta was passed recommending grant of lease of further 400 bighas of land to the Sens. In May, 1965 the Corporation of Calcutta under the terms of the lease, granted further 400 bighas of land to the Sens on the same terms and conditions as set out in the said resolution. On 31st March, 1966 the lease expired. In April, 1966 the Sens paid rent for the additional 400 bighas of land under the said lease. The Corporation of Calcutta granted a receipt indicating that the said sum has been kept in suspense account. On 2nd January, 1970 the Corporation of Calcutta passed a resolution at 6-00 P. M. authorising the Commissioner of Calcutta to take immediate possession of the Dhapa land. The resolution is as follows : --"resolved : i. That all the lands which were previously demised in favour of M/s. D. N. Sen and others and occupied by them including the agents and servants and all persons claiming under them, and or held by them in terms of lease Deed dated 17th April, 1962 which expired on 31st March, 1966, be immediately taken possession of by the Commissioner on behalf of the Corporation of Calcutta under proviso to Clause (h) of Sub-section (1) of Section 6 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) for purposes of the Corporation namely maintenances of essential conservancy services of the city, improvement, modification and augmentation in the methods and arrangements for garbage and other waste disposal at Dhapa and utilisation of the Dhappa lands for its requirements. II. The Commissioner be directed to issue notice forthwith on the persons concerned to deliver possession of the land noted above to the Corporation of Calcutta by 10 a. m. on 3rd January, 1970. III. Resolved also that in the event of failure of those concerned to comply with the notice to deliver possession, the Commissioner is directed to take delivery of possession on behalf of the Corporation of Calcutta on 3rd January, 1970 or as immediately as possible thereafter. "

Finding of the Court:

The Court held that the proviso to Section 6 (1) (h) of the West Bengal Estates Acquisition Act, 1953 applies to the instant case and the Corporation of Calcutta was entitled to take recourse to the said proviso for the purpose of obtaining the possession of the lands if such lands were required for its own purpose. The Court further held that the Corporation of Calcutta was not entitled to take forcible possession, or possession without any recourse to a proper proceeding for possession in a proper Court. Section 6 (1) (h) does not, according to the Sens, authorise the act of taking unilateral possession by the Corporation of Calcutta. The Court also held that the petitioners have no right to be in possession of the land, after the notice had been given by the Corporation. But the question is whether even in such a case the Corporation of Calcutta was obliged to institute proceedings for recovery of possession on the failure of the Sens to comply with the notice under Section 6 (1) (h) proviso of the Act. As the Sens have no right to remain in possession of the land after the notice had been given under the proviso to Section 6 (1) (h) of the said Act and in view of the fact that land in question originally belonged to the appellants and had been given to the predecessors in interest of the Sens upon certain terms and conditions, which in view of the proviso to the aforesaid section, do not give the Sens any right to remain in possession, the Sens are not entitled to any relief under Article 226 of the Constitution.

Issues: 1. Whether the proviso to Section 6 (1) (h) of the West Bengal Estates Acquisition Act, 1953 applies to the instant case? 2. Whether the Corporation of Calcutta was entitled to take forcible possession, or possession without any recourse to a proper proceeding for possession in a proper Court? 3. Whether the Corporation of Calcutta was obliged to institute proceedings for recovery of possession on the failure of the Sens to comply with the notice under Section 6 (1) (h) proviso of the Act? 4. Whether the petitioners have any right to be in possession of the land, after the notice had been given by the Corporation?

Ratio Decidendi: 1. The proviso to Section 6 (1) (h) of the West Bengal Estates Acquisition Act, 1953 applies to the instant case and the Corporation of Calcutta was entitled to take recourse to the said proviso for the purpose of obtaining the possession of the lands if such lands were required for its own purpose. 2. The Corporation of Calcutta was not entitled to take forcible possession, or possession without any recourse to a proper proceeding for possession in a proper Court. Section 6 (1) (h) does not authorise the act of taking unilateral possession by the Corporation of Calcutta. 3. The Corporation of Calcutta was not obliged to institute proceedings for recovery of possession on the failure of the Sens to comply with the notice under Section 6 (1) (h) proviso of the Act. 4. The petitioners have no right to be in possession of the land, after the notice had been given by the Corporation.

Final Decision: The appeal is allowed and the order and judgment of P. K. Banerji, J. , dated 21st September, 1970, are hereby set aside and the application by the petitioners, the Sens, under Article 226 of the Constitution, is dis- missed.