JUDGMENT
Paritosh Kumar Mukherjee, J.
1. The petitioner Anjali Bhowmick has challenged an order of requisition dated November 21, 1986, passed by the Deputy Commissioner, Darjeeling, under the provisions, of Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948), which is annexure 'H' to the present writ petition.
2. It appears from the schedule of the said order that premises known as 'Kiran Bhawan' holding No. 393, Ward No. XI, Subhaspalli, Police Station-Siliguri, District-Darjeeling has been requisitioned for accommodating office accommodation of the State Government, office of the District Controller, Food and Supplies, Darjeeling and Subdivisional Controller, Food and Supplies, Siliguri.
3. The present writ petition was moved before me on January 7, 1987 in the presence of Mr. A.C. Moitra, learned Advocate, appearing for the respondents, when civil order was issued and an interim order of injunction was granted to this extent that all further proceedings pursuant to the order of requisition dated November 21, 1986, as per annexure 'H' to the writ petition would be stayed and respondents were further directed not to change the nature and character of the requisitioned premises until further orders.
4. Thereafter, the writ petition appeared before Mahitosh Majumdar, J. (as His Lordship then was), and was heard-in-part by His Lordship on different dates in the year 1987 and by order dated March 16, 1989, the matter was released by His Lordship. 5. Thereafter, the matter was heard by me on December 20, 1991 and February 18, 1992 and hearing was concluded on March 6, 1992 when parties were directed to submit written arguments.
6. The writ petition was further heard today (April 27, 1992) when both the learned Advocates for the petitioner and the learned Advocate for the State has placed their written submissions, respectively. 7. Mr. Amalesh Roy, learned Advocate appearing for the writ petitioner at the final hearing of the writ petition, placed following facts from the writ petition, which is not disputed.
8. The petitioner is the owner of 'Kiran Bhawan' (hereinafter referred to as the suit premises) and the Food and Supplies Department, Government of West Bengal had been occupying "as a tenant" the ground floor excepting two rooms and the entire first floor having total area about 3695 sq. feet in the disputed premises, bearing Municipal Holding No. 393, Police Station-Siliguri, District-Darjeeling since 1969 at monthly rental of Rs. 565/- only.
9. In 1974, the petitioner made representation to the respondents for enhancement of the rent of the said premises to the tune of Rs. 1,100/- per month fawn 1st July, 1974. The Special Land Acquisition Officer assessed the rent of the said disputed premises at Rs, 900/- per month, in the month of Decembeer, 1976. The said rent which was assessed by the Special Land Acquisition Officer, was not paid and the respondents continued to pay rents at "old rate" of Rs. 565/- per month only.
10. The District Controller, Food and Supplies, Darjeeling and Siliguri by his Memo No.; 605 dated April 23, 1981 served a notice upon the petitioner on April 24, 1981 for termination of tenancy of the said premises with the expiry of the month of April 1981 and requested the petitioner to take khas and vacant possession of the suit premises on May 1, 1981 and stated, inter alia, that the office accommodation would be shifted to some other place.
The copy of the said memo has been annexed with letter 'A' to the supplementary affidavit filed on behalf of the petitioner.
11. It is further the case of the writ petitioner that such notice has been given for implementation of the order, but no shifting had taken place and thereafter the petitioner served a notice under Section 80 of the Code of Civil Procedure upon the respondents to quit possession, of the said premises and deliver up the vacant possession to the writ petitioner.
12. As the respondents did not comply with the said notioe, the petitioner filed an Ejectment Suit being O.C, No. 171 of 1982 in the court of the learned Subordinate Judge, Siliguri under Section 13(1) (j) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 1956 Act) and ultimately the suit was decreed ex parte in favour of the writ petitioner, as the respondent did not contest the said suit inspite of receiving the notice and summons on May 25, 1983.
13. Thereafter, the judgment-debtor, being the respondent herein, filed an application under Order 9 Rule 13 of the Code of Civil Procedure, along with an application. under Section 5 of the Limitation Act for setting aside the said ex parte decree and for re-hearing of the case. The said misc. case was dismissed for default on June 1, 1984.
14. Immediately thereafter, the writ petitioner made an application for execution of the decree on June 14, 1984, being O.C. Execution Case No. 5 of 1984. On January 13, 1986, the learned Executing Court passed an order of "police help" for taking possession of the said premises, but the petitioner did not take posssesion due to non-availability of the police force.
15. Subsequently, the judgment-debtor viz., the District Controller, Food & Supplies, Darjeeling filed an application under Section 47 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure, inter alia, praying that the decree passed in the O.C. Suit No. 171 of 1982, is a nullity and could not be executed.
16. The learned Executing Court, by judgment and order dated February 19, 1986, held that decree passed in O.C. Suit No. 171 of 1982: could not be executed, as it was nullity. The copy of the said judgment is amnexure 'C to the writ petition.
17. The writ petitioner thereafter moved a revisional application before this Hon'ble Court against the order dated February 19, 1986. On July 11,. 1986, the Divisional Bench presided over by Ghittatosh Mookerji and Susanta Chatterji, JJ. were pleased to allow the revisional application and set aside the order passed by the learned Additional District Judge, Siliguri dated February 19, 1986, in Misc. Case No. 8 of 1986,
18. In the operating part of the judgment, Their Lordships were pleased to observe that the Misc. Case filed by the District Controller was dismissed, without prejudice to the rights and contentions of both parties in any other proceeding.
19. In allowing the revisidnal application Their Lordships observed as follows :-
"We accordingly allow this application and set aside the order complained of. We dismiss the Misc. Case filed by the District Controller without prejudice to the rights and contentions of both parties in any other proceeding. We direct that the executing court to proceed in accordance with law. There will be no order for costs."
20. It appears from the record that the Sub-Divisional Controller, Siliguri, made an application under Section 47 of the Code of Civil Procedure, in the O.C. Execution Case No. 5 of 1984.
21. The District Controller of Darjeeling also filed an application under Order 21 Rule 22B of the said Code before the Executing Court.
22. It appears from the information slip that Nazir was directed by the learned Executing Court to give delivery of possession by December 18, 1986 as per order No. 41 dated November 17, 1986.
23. It was at this important juncture, the impugned order of requisition dated November 21, 1986, was passed by the Deputy Commissioner, Darjeeling, in purported exercise of power conferred under sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948).
24. Mr. Amalesh Roy, learned Advocate appearing in support of the writ petition argued the following grounds in support of the present writ petition, challenging the order of requisition.
25. At the first place, he submitted that the impugned order of requisition under Section 3(1) of the said Act, was passed by gross abuse of process. of power, and as not maintainable, both on points of law as well as facts.
26. In the second place, he submitted that the impugned order of requisition has been passed only to bypass the decree passed by the competent Civil Court, in an ejectment suit and also to bypass the execution proceeding, referred to hereinabove.
27. In support of this branch of submission, he has placed strong reliance on the judgment delivered by this Court in the case of Adarsh Properties (P) Ltd. and Anr. v. 1st L.A. Collector, Calcutta and Ors., reported in 1987(11) CHN page 129, wherein this Court after considering the facts of that case observed as follows :-
"The petitioner No. 1 had obtained an ejectment contested decree against the tenant, the Deputy Inspector General of Police, Enforcement, respondent No. 3 of this writ petition, in respect of the flat in question. The decree holder put the decree into execution for obtaining possession of the fiat but the judgment-debtor successfully resisted the the same for some years, and ultimately, the court directed the police to render assistance to the decree holder to obtain possession from the respondent No. 3 and at this stage, the decree holder received order of requisition of the flat. Thereupon the petitioner obtained the Rule in which the propriety of the requisition order was challenged. It was inter alia contended that the impugned order was nothing but a fraud committed on the provisions of the statute, there was no "public purpose" that the occupation of the flat having with the D.I.G., Enforcement, the petitioner could not be directed to deliver possession of the flat, facilities and amenities namely lift, staircase, electricity, supply of water, etc. in respect of the flat could not be requisitioned under the Act and further that, because of the prolonged continuance of the order of requisition the government should either release the property or acquire the same."
28. After placing the aforesaid judgment, Mr. Roy further submitted that ejectment decree having been passed in O.C. Suit No. 171 of 1982 and no appeal having been preferred against the said ejectment decree, the respondents, in passing the order of requisition, could not frustrate or make the judgment nugatory, it has been observed in the case of Adarsh Properties (P) Ltd. and Anr. (supra).
29. Mr. Roy further submitted that having regard to the accepted principles of law, no order of requisition could be passed and/or served in respect of the writ petitioner, directing the petitioner to hand over possession of the premises, when admittedly the premises was under the possession of the tenant, viz., District Controller, Food and Supplies, Siliguri.
30. Mr. Roy after placing the judgment of H. D. Vora v. State of Maharashtra and Ors., , submitted from
paragraph 28 of the judgment in the case of Adarsh Property (P) Ltd. and Anr. (supra), that the facts in the present case is similar, though not identical as decree passed by the competent Civil Court was sought to be bypassed by passing the order of requisition under Section 3(1) of the said Act of 1948.
31. According to Mr. Roy the facts in the case of Adarsh Property (P) Ltd. and Anr. (supra), can be made applicable in the facts of the present case in full force and the impugned order of requisition should be struck down.
32. It appears from the aforesaid judgment that this Court had taken into consideration of the continuance of the order of requisition for an indefinite period. In view of the observation of the Supreme Court in the case of H. D. Vora v. State of Maharashtra and Ors., , as well as in the case of Jiwani Kumar Paraki v. 1st Land Acquisition Collector, Calcutta and Ors., , Chief Justice P. N. Bhagawati (as His Lordship then was) and Sabyasachi Mukharji (as His Lordship then was), observed as follows :-
"The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquisition of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of domain or control over property without acquiring the rights of ownership and must by its very nature be of temporary duration.
Thus the Government cannot under the guise of requisition continue for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but if cannot use the power of requisition in achieving that object. The power of acquisition is exercisable by the government only for a public purpose for which the premises are required is of a perennial of permanent character from the very inception no order can be passed requisitioning the premises and in such a case the order of requisition, if passed would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises required is of such a character that from the very inception it can never served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely."
33. Mr. Roy, however, has referred to another Single Bench decision of this Court viz., the case of Howrah Mills v. State of West Bengal and Ors., reported in 1988 CLJ page 455, which has been subsequently affirmed by the decision of the Court of Appeal presided over by Monoj Kumar Mukherji and Altamas Kabir, JJ. in Remington India v. Howrah Mills, wherein this Court held that in passing order of requisition, the government did not act bona fide, when the suit was pending.
34. Mr. Roy has also placed strong reliance to another judgment delivered by me, in the case of Sri Sri Gopal Jew and Ors. v. State of West Bengal and Ors., reported in 1988(1) CHN page 420, wherein this Court laid down the following proposition of law, which is set out herein below :
"The petitioners, as owners of the premises in question obtained an ejectment decree against the lessees of the said premises and applied for execution of the decree for getting possession from the sub-lessees, the Refugee Handicraft, which made an application praying that the decree was not binding on them. The application of the sub-lessees was dismissed and the execution of the decree was allowed. The sublessees preferred an appeal from the order directing them to vacate and the appeal court stayed the execution of the decree by an interim order. The Refugee Handicraft in the meantime moved the State Government for getting the premises requisitioned. The petitioners moved this writ petition for issue of an anticipatory writ praying for a direction on the appropriate authorities not to issue any order/notice or take any step in the matter under Sections 3 and 4 of the West Bengal (Requisition and Acquisition) Act, 1948."
35. This Court in allowing the writ petition, in paragraph 23 of the said judgment, observed as follows :-
"After hearing both the parties at length, and in view of my aforesaid decisions in the case of Adarsh Properties (P) Ltd. and the principles of law as laid down by Mr. Justice M. M. Dutt in Sandhya Mukhati's case, I am of the view that respondents should not be allowed to take recourse to the provisions of Act V of 1947 in respect of the disputed premises and the present writ petition should be allowed accordingly."
36. After applying the principles of law, laid down in the case of Adarsh Properties (P) Ltd. and Ors. (supra) and the principles of law laid down by M. M. Dutt, J. in Sandhya Mukhati's case, reported in 1977(1) CLJ 375, I am of the view that the respondents should not be allowed to take recourse to provision of Act II of 1948 in respect of the disputed premises and the present writ petition should be allowed accordingly.
37. Although many other decisions have been cited by Mr. Roy, but in my view this Court should not be encumbered with other decisions, as the writ petition is entitled to succeed on the authorities pronounced by this Court on the basis of the aforesaid decisions.
38. Mr. A. C. Moitra, appearing with Mr. Sumitra Das Gupta on behalf of the respondents had first submitted from the provisions of West Bengal Land (Requisition and Acquisition) Act, 1948.
39. He has first referred to the provisions of 3(1) of the said Act and also submitted that in view of the clearance given by Chittatosh Mookerji and Susana Chatterji, JJ. in the earlier revisional application, the District Controller's right was protected by the Division Bench to take steps in any other proceeding.
40. He submitted that by other proceedings, it appears that the State Government was entitled to take recourse under provisions of Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act II of 1948, by passing the order of requisition.
41. After going through the decision of Chittatosh Mookerji, J. (as His Lordship then was), sitting with Susanta Chatterji, J., I am of the view that other proceedings does no mean that Division Bench has given an unrestricted power to the respondent, who has suffered decree of ejectment and without preferring any appeal against the decree, the said department was not entitled to take recourse to law by exercising power of Eminent Domain for procuring an order of requisition, to frustrate the decree passed by the competent Civil Court.
42. In my view, by taking recourse to any other proceedings/any other legal proceeding, available under the Code of Civil Procedure, does not mean, procuring any order from the State Government, and continue to remain in unlawful possession in the disputed premises, which was under the possession of the District Controller, Food & Supplies. ,
43. Mr. Moitra further sought to distinguish the facts in the case of Adarsh Properties (P) Ltd. in the facts of the present case referred to in the case of Kavalappara Kottarathil Kochuri and Ors., v. State of Madras and Anr., , wherein it has been
held that Preamble of a Statute is a key to understanding of it and it is well established that it may legitimately be consulted to solve any ambiguity or to fix the meaning of words which have more than one or to keep the effect of the Act within the real scope whenever the enacting part is in any of these respects open to doubt.
44. Mr. Moitra further put emphasis on the power given to the State Government under Section 3(1) to requisition the land, which includes flats or the land for maintaining supplies and services essential to the life of the community, as in terms of sub-section (e) of Section 3 of the Act, the Government is enjoined upon and empowered to requisition the properties on its satisfaction. The material thing is the Government's satisfaction and the court cannot substitute its own satisfaction or its evaluation for the satisfaction of the court.
44A. In the facts, of the present case, I am of the view that the State Government had not only committed fraud upon the provisions of the ,; statute by directing the writ petitioner Anjali Bhowmick to make over possession, as per impugned order of requisition dated November 21, 1986, as admittedly, the petitioner was not in possession of the said premises, on the said date.
45. In this context, this Court cannot overlook the decision of the Division Bench in the case of Paresh Natk Nandi v. State of West Bengal and Ors., reported in 68 CWN page 264, in which the Bench consisting of H. K. Bose CJ. and G. K. Mitter J. observed as follows :-
"The court must consider (1) whether there is actual need for accommodation of the person concerned and (2) whether the need will be met by requisition of the particular house or flat. A palatial building cannot be requisitioned for a government servant even if he was willing to bear the burden of its upkeep nor would the Government be justified in requisitioning flat 'A' if it was shown that flat 'B' which was equally suitable in all respects was available to him without a requisition order."
46. In the said case the Division Bench appears to have considered the earlier catena of cases decided by this Court and the Supreme Court. The following cases which referred to in the said case, are given below :
1. Satya Narayan Nathani v. State of West Bengal and Ors., reported in 61 CWN Page 420. 2. State of Bombay v. R.S. Nanji, . Himabai Framji Petit v. Secretary of State for India, reported in 42 IA 44. .
47. In my view, although the public purpose under the provisions of Section 3 of the Act indeed cannot be called in question ordinarily in the Court of law, but at the same time if the order is procured for "any oblique purpose" or "non-existing purpose", which is malafide on the fact of it, as in the present case, certainly Courts of law are entitled to scrutinise the validity of exercise of such power, not exercised in good faith by the State Government in view of the aforesaid decisions, referred to hereinabove.
48. On the basis of the aforesaid submission, this Court has to decide whether the order of requisition dated November 21, 1986 had been passed only to frustrate the order passed by the competent Civil Court or it has been passed in good faith.
49. In my view, the impugned order was passed by the State Government without proper application of mind and without any material and, as such, the same is liable to be set aside.
50. Before parting, this Court cannot overlook the good gesture of the District Controller, Food & Supplies by which the District Controller, Food & Supplies had already served notice to vacate the premises by their letter dated April 24, 1981, by terminating the tenancy, although the said order was not acted upon for some reason or other.
51. In the result, the writ petition is entitled to succeed. The impugned order of requisition dated November 21, 1986 is set aside by issue of a writ of Certiorari.
52. Let consequential Writ in the nature of Mundamus be issued directing the respondents to de-requisition the premises, forthwith, preferably within a period of one month from service of the xerox copy of this judgment.
53. The writ petitioner, however, will be entitled to requisition compensation for the period and/or arrears of rent, if not paid during the period of requisition, within a period of three months from communication of the xerox copy of this judgment.
The writ petition is allowed to the extent indicated above. There will be no order as to costs.
54. Prayer for stay of operation of this judgment, made by Mr. A. C Moitra, learned Advocate for the respondents, is , considered but refused, in the facts of the present case.
Let xerox copy of this judgment be made available to the parties after complying with the necessary formalities.