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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
M/s. Bansilal Leisure Parks Ltd. - Petitioner
Versus
The State Fisheries Development Corporation Ltd. & Ors. - Opposite Parties
C.O. No. 2270 of 2016
Decided On : 21-09-2016
SPECIFIC RELIEF ACT - SECTION 6 - POSSESSION - RESTORATION - INJUNCTION - CODE OF CIVIL PROCEDURE - SECTION 151 - RESTORATION OF POSSESSION - LICENSE AGREEMENT - TERMINATION - RIGHT TO POSSESSION - BARRICADE - DISPOSSESSION - DUE PROCESS OF LAW - SUMMARY SUIT - SECTION 80 NOTICE - MAIN LEGAL POINT : A person found in settled possession cannot be dispossessed automatically upon the issuance of a notice of termination and the law mandates that such a person cannot be dispossessed without due process of law.
Fact of the Case:
The petitioner, M/s Bansilal Leisure Parks Pvt. Ltd., filed a suit for declaration of its right to run a business over the suit property and for an injunction restraining the defendants from disturbing its possession. The petitioner had entered into an agreement with the opposite party No. 1, State Fisheries Development Corporation Ltd., for the use and occupation of the surface water area of the suit property for a period of 30 years. The agreement was terminated by the opposite party No. 1 invoking Clause 3 of the agreement, which provided that the right of the petitioner as licensee shall immediately stand terminated automatically without any reference in the event the right of the opposite party No. 1 over the water area is withdrawn by the Govt. of West Bengal for any reason whatsoever. The petitioner filed an application under Section 151 of the Code of Civil Procedure for restoration of possession, alleging that the defendants had taken possession of the suit property illegally without following due process of law.
Finding of the Court:
The Trial Court rejected the petitioner's application, holding that the petitioner was not entitled to possession as it had failed to serve a notice under Section 80 of the Code of Civil Procedure before filing the suit, and that the defendants had taken possession of the suit property when the injunction order passed by the Civil Judge (Senior Division) 2nd Court Barasat was vacated by the Appellate Court. The petitioner challenged the Trial Court's order in a revisional application before the High Court.
Issues: 1. Whether the petitioner was entitled to possession of the suit property after the termination of the agreement. 2. Whether the defendants had taken possession of the suit property illegally without following due process of law.
Ratio Decidendi: 1. The High Court held that the petitioner was entitled to possession of the suit property even after the termination of the agreement, as a person found in settled possession cannot be dispossessed automatically upon the issuance of a notice of termination and the law mandates that such a person cannot be dispossessed without due process of law. 2. The High Court also held that the defendants had taken possession of the suit property illegally without following due process of law, as they had barricaded the entrance to the suit property and prevented the petitioner from accessing it.
Final Decision: The High Court set aside the Trial Court's order and directed the Trial Court to reconsider the petitioner's application under Section 151 of the Code of Civil Procedure in the light of the observations recorded in the judgment.
Harish Tandon, J.
This revisional application is directed against Order No. 30 dated 22nd April, 2016 passed by the learned Civil Judge (Senior Division), 6th Court, Alipore in Title Suit No. 49 of 2015 by which application under Section 151 of the Code of Civil Procedure for restoration of possession in respect of a suit premises is rejected.
2. The plaintiff/petitioner filed a suit for declaration that it has every right or authority to run the business over the property in suit and permanent injunction restraining the defendants/opposite parties from disturbing the peaceful possession and/or from running the business and/or causing any disturbance or hindrance hampering such business over the suit property and also from demolishing the structures standing there on.
3. The aforesaid suit appears to have been filed in or about 20th April, 2013. The plaint case proceeds that the State Fisheries Development Corporation Ltd., opposite party No. 1 herein published a notice inviting offer in sealed cover from the financially sound and experienced persons for setting up public entertainment cum tourist projects on the water areas of the different forms of the Corporation located in Kolkata and other important places in West Bengal.
4. The plaintiff was earlier known as M/s Bansilal Farms Pvt. Ltd. and subsequently changed its name as M/s Bansilal Leisure Parks Pvt. Ltd. The factum of the change of name of the plaintiff was duly communicated to the authorities concerned. The plaintiff was adjudged as highest bidder and an agreement was entered into on 12th March, 1991 wherein the right for use and occupation for surface water project was given. It was further agreed that the plaintiff company shall not in any way use the appertaining land of the project for general activities except with the prior approval of the opposite party No. 1 for setting up temporary structure for the use of its office, booking counter, guard room, gates, boundary walls, fencing, electrification etc. The land area was also allowed to be used for the purpose of beautification for planting tress without hampering pisciculture in any way. It was clearly averred therein that the right to use the surface water area for execution of the project is purely on the basis of a license which shall not be construed to have created any right or interest such as tenant or a lessee or any other rights whatsoever of the opposite party No. 1.
5. Subsequently, another agreement was entered into between the plaintiff and the opposite party No. 1 on 23rd September, 1998 allowing the plaintiff to set up and run the tourist cum boating complex upon renewing the agreement under which the plaintiff was allowed to use appertaining land of the project for general activities of their project and shall be entitled to use the surface water area and appurtenant land for tourist cum boating complex for which if any permission is required the same would be accorded by the opposite party No. 1. It was further agreed that the said agreement can be terminated before the expiry of the period upon six months prior notice in writing by either of the parties on valid ground.
6. A further agreement was entered into on 15th December, 2010 renewing the permission for further period of 30 years, subject to the right of further renewal. It is alleged that a news was published in a daily newspaper dated 16th April, 2012 indicating that the opposite party no. 2 is trying to establish a tourist project over the Nalban and it was further learnt from the reliable source that the opposite party Nos. 2 and 3 in collusion with the opposite party No. 1 are contemplating to take immediate possession of the suit premises by dispossessing the plaintiff. In Paragraph 16 of the plaint it is stated that because of the emerging situation having arisen on publication of the news and the action of the opposite parties the notice under Section 80 of the Code of Civil Procedure could not be served before the instituti
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