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High Court Of Calcutta
A. N. Sen, M. M. Dutt
SUDHIRA BALA ROY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
F. M. A. 489 Of 1980 And Civil Rule No. 8029 (W) Of 1980
Decided On : 11/18/1980
WEST BENGAL PREMISES REQUISITION AND CONTROL (TEMPORARY) PROVISION ACT, 1947 - SECTION 3(1), 4(1)(A), 4(1)(AA) - REQUISITION OF PREMISES - SERVICE OF ORDER - MANDATORY - DISPOSSESSION WITHOUT PRIOR NOTICE - ILLEGAL.
Fact of the Case:
Appellants, owners of premises No. 196/1, Rash Behari Avenue, Calcutta, challenged the propriety of a single Judge's order refusing an interim order directing respondents to restore possession of the first and second floors of the premises to the appellants. Appellants had let out the floors to 'Suralirtha', a music and dance school, and obtained a decree for eviction on grounds of reasonable requirement, default in payment of rent, and sub-letting. The decree was executed, and police were posted at the gate of the premises, preventing ingress and egress. Appellants moved the High Court under Article 226 of the Constitution, and a civil order was made directing the police to ensure there was no obstruction to ingress and egress. On July 9, 1980, a police force and Land Acquisition Department officers demanded possession of the first and second floors, alleging they had been requisitioned under the West Bengal Premises Requisition and Control (Temporary) Provision Act, 1947 (the Act). Appellants were dispossessed, and no order of requisition was served on them. They moved the High Court again, challenging the requisition order as illegal and mala fide, and contending that requisition for a private institution was not for a public purpose. The learned Judge issued a Rule Nisi but refused to grant an interim order restoring possession of the requisitioned premises.
Finding of the Court:
The High Court held that the order of requisition had not been served on the appellants and, consequently, the respondents acted illegally in dispossessing the appellants from the premises. It was also held that the provisions of Clauses (a) and (aa) of Section 4 (1) of the Act were mandatory and the respondents had no authority to take possession of the requisitioned premises without serving an order under Clause (a) or Clause (aa) giving the appellants the prescribed period of time to vacate. The Court further held that the word 'may' in Section 4 (1) of the Act should be construed as 'shall' where a premises is requisitioned for a public purpose other than for the purpose of the person in occupation of the premises or the landlord or tenant of such premises.
Issues: 1. Whether the order of requisition was served on the appellants? 2. Whether the provisions of Clauses (a) and (aa) of Section 4 (1) of the Act were mandatory? 3. Whether the word 'may' in Section 4 (1) of the Act should be construed as 'shall' where a premises is requisitioned for a public purpose other than for the purpose of the person in occupation of the premises or the landlord or tenant of such premises?
Ratio Decidendi: 1. The High Court held that the order of requisition had not been served on the appellants based on the following reasons: (i) The appellants' allegation of non-service of the order of requisition was not controverted by the State respondents. (ii) The State respondents had not filed an affidavit sworn by the Process Server regarding the service of the order of requisition. (iii) The manner in which possession of the requisitioned premises was taken, as stated above, made it difficult for the Court to accept the statement of the Process Server that the order of requisition was served upon the appellants.
Final Decision: The High Court made the rule absolute and directed that a writ in the nature of Mandamus issue commanding the respondents to forbear from giving any effect or further effect to the impugned order of requisition of the premises No. 196/1, Rash Behari Avenue, Calcutta or any portion thereof and to forthwith restore to the appellants possession of the first and second floors of the said premises.
( 1 ) IN this appeal, the appellants, who are admittedly owners of premises No. 196/1, Rash Behari Avenue, Calcutta have challenged the propriety of the judgment of a learned single Judge of this Court dated July 24, 1980, whereby the learned Judge, while issuing the Rule Nisi on the application of the appellants under Article 226 of the Constitution, has refused their prayer for an interim order directing the respondents to restore possession of the first and second floors of the said premises to the appellants.
( 2 ) THE case of the appellants as stated in the writ petition is inter alia that they had let out the first and second floors of the disputed premises to "suralirtha", a music and dance school. The appellants filed a suit for eviction being Title Suit No, 581 of 1978 of the second court of Munsif at Alipore against the persons in management of the said school on the grounds of reasonable requirement of the appellants of the said two floors of the disputed premises, default in payment of rent, sub-letting etc. The said suit was decreed ex parte on Apr. 16, 1979. Thereafter, the appellants put the said decree in execution and obtained possession of the said floors of the disputed premises with police help on July 5, 1980 at about noon. In the night of that very day, some policemen were posted at the gate of the disputed premises preventing the appellants and the members of their family ingress to and egress from the disputed premises. On July 17, 1980, the appellants moved before this Court an application under Article 226 of the Constitution against the State of West Bengal, the Deputy Commissioner of Police, South Division, Calcutta and the Officer-in-charge of the Ballygunge Police Station, inter alia praying for a mandatory injunction directing the said res- pendents to forthwith stop or withdraw police interference at the disputed premises disturbing the lawful possession of the appellants of the same. On that day, the learned Judge made a civil order directing the said respondents to ensure that there was no obstruction to the ingress and egress to and from the disputed premises. It appears that on July 8, 1980, the respondent No. 9 Ajita Ranjan Mukherjee and his wife Smt. Nihar Kana Mukherjee wrote a letter to the Chief Minister of the State, earnestly requesting him to acquire the disputed premises for Suratirtha. It is the case of the appellants that on the next day, that is, on July 9, 1980 a police force headed by the Assistant Commissioner of Police came to the disputed premises along with some officers of the Land Acquisition Department and demanded possession of the first and second floors of the disputed premises from the appellants alleging that the same had been requisitioned. The appellants, in that predicament, asked their learned Advocate over the phone to come to the disputed premises. After the learned Advocate had arrived, he was shown by the Officers of the land Acquisition Department an order being Order No. 24 of 1980 dated July 9, 1980, whereby the Government of West Bengal purported to requisition the first and second floors of the disputed premises under the West Bengal Premises Requisition and Control (Temporary) Provision Act, 1947, hereinafter referred to as the Act. In the said order, it was also stated that possession would be taken on July 9, 1980 at 5. 30 P. M. It is not disputed that on that day possession of the said two floors of the disputed premises was taken. In other words the appellants were dispossessed from the said two floors of the disputed premises with police help.
( 3 ) IT has been alleged by the appellants that no order of requisition was served upon them and even the officers of the Land Acquisition Department who were present at the time of taking delivery of possession on July 9, 1980 refused to give a copy of the order of requisition to their learned Advocate. It is also alleged by the appellants that they were not also served with any order of
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