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Smt. Sudhira Bala Roy and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 489 of 1980 and Civil Rule No. 8029 (W) of 1980
Judge
Reported inAIR1981Cal130,85CWN273
ActsWest Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Sections 3(1) and 4(1)
AppellantSmt. Sudhira Bala Roy and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateS.D. Banerjee, ;R.N. Mitter, ;Sibdas Banerjee, ;Sailendra Nath Ray and ;Jaharlal Roy, Advs.
Respondent AdvocateS.K. Acharya, Adv. General, ;Sudipta Maitra, Adv. (for Nos. 1-8), ;J.N. Roy, ;Biswarup Gupta, ;J.N. Ghosh, ;P.K. Guha, ;D.K. Pal and ;Pranab Dutt, Advs. (for No. 9)
DispositionAppeal allowed
Cases ReferredEstate of Late N. C. Goenka v. State of West Bengal
Excerpt:
- m.m. dutt, j. 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.....
Judgment:

M.M. Dutt, J.

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 the Collector under Clause (a) or Clause (aa) of Section 4(1) of the Act directing them to vacate the premises within the period as mentioned therein. On the next day, that is, on July 10, 1980, the appellants again moved this Court under Article 226 of the Constitution challenging the said purported order of requisition. It was contended by the appellants that the impugned order of requisitionwas illegal and mala fide. The further contention was that Suratirtha being a private institution, requisition of the portion of the disputed premises for such a private institution could not be for a public purpose. In any event, it was contended by the appellants, that no order of requisition under Section 3(1) and no order for delivery of possession under Clause (a) or Clause (aa) of Section 4(1) of the Act having been served upon the appellants, the dispossession of the appellants from the said portion of the disputed premises was illegal and without jurisdiction.

4. Before issuing a Rule Nisi on the writ application of the appellants, the learned Judge directed service of the notice of the application upon the respondents. The learned Judge also appointed Mr. Rathindra Nath Banerjee, Advocate, a Special Officer and directed him to take possession of the requisitioned premises by putting his lock and seal on the doors. The respondents appeared and opposed the prayer for the issuance of the Rule. An affidavit-in-opposition affirmed by the Secretary of Suratirtha on July 13, 1980 was filed. No affidavit was, however, filed on behalf of the State respondents. In the said affidavit-in-opposition filed on behalf of Suratirtha, it was inter alia alleged that the appellants had obtained the ex parte decree for eviction fraudulently suppressing the summons and notice of the suit. It was stated that an application for the setting aside of the ex parte decree was made and the same was pending before the learned Munsif, second court, Alipore.

5. The learned Judge, after considering the submissions made on behalf of the parties, came to the conclusion that the appellants were able to make out a prima facie case for the issuance of a Rule Nisi. Accordingly, the learned Judge issued a Rule Nisi, but refused to grant an interim order restoring possession of the requisitioned premises to the appellants. The learned Judge, however, made an interim order in favour of Suratirtha permitting it to hold and conduct its classes in the requisitioned premises till the disposal of the Rule. The appellants were granted liberty to remove their furniture and other movables from the requisitioned premises, and it was directed that in case the same were not removed, the Special Officer would keep the same in a separate part of the premises. The appellants, as stated above, felt aggrieved by the said order of the learned Judge disallowing the prayer of the appellants to restore to them the possession of the requisitioned premises. Hence this appeal.

6. In this appeal also, the appellants made a similar prayer for restoration of possession of the requisitioned premises which were opposed by the respondents. By an order dated July 25, 1980, we directed that the Special Officer would continue to remain in possession of the requisitioned premises till the disposal of the Rule or until further orders of this Court. Upon an undertaking given on behalf of the respondent No. 9 Ajita Ranjan Mukherjee, the Secretary of Suratirtha, through his learned Counsel Mr. Subrata Roy Chowdhury that the respondent No. 9 would vacate and make over vacant and peaceful possession of the requisitioned premises, we directed the Special Officer to allow Suratirtha to use the rooms in the first and second floors of the premises, excepting two rooms in the second floor, for the purpose of holding music and dance classes and also for other purposes incidental thereto including its office use and to display its signboard at the main gate of the disputed premises. The Special Officer was also directed to allow the appellants to keep their furniture and other articles in two rooms in the second floor. It was further directed that the Special Officer would put the said two rooms under lock and key and keep the key in his possession. At the request of the parties and, as agreed to by them, the writ petition was directed to be heard along with the appeal. So we have to dispose of both the appeal and the Rule Nisi.

7. The appellants have challenged the legality and validity of the order of requisition under Section 3(1) of the Act on three grounds-- (1) No order under Section 3(1) and no order either under Clause (a) or under Clause (aa) of Section 4(1) of the Act having been served upon the appellants before they were dispossessed from the requisitioned premises, the order of requisition and the dispossession of the appellants were illegal, inoperative and void. (2) The State Government and its officers acted illegally and mala fide in issuing the order of requisition and in dispossessing the appellants from the requisitioned premises and (3) Suratirtha being a private profit-making institution, the order of requisition for the purpose of Suratirtha was not for any public purpose and, as such, it was illegal and invalid.

8. So far as the first point raised by the appellants is concerned, it has been alleged in the writ petition and also in the application for interim order that has been filed before us that the order of requisition was not served upon the appellants. It has beenstated already that no affidavit-in-opposition has been filed by the State respondents who are respondents Nos. 1 to 8, traversing the allegation of the appellants about the non-service of the order of requisition upon the appellants and also about the non-service of an order under Clause (a) or Clause (aa) of Section 4(1) of the Act. No affidavit has also been filed in this appeal, although the respondents Nos. 1 to 8 had got sufficient opportunity to file an affidavit, if they had so liked. Instead, the respondents had produced before the learned Judge in the trial court as well as before us the case records in order to show service of the order of requisition under Section 3(1). In our opinion, in the facts and circumstances of the case, mere production of the records maintained by the respondents is not sufficient to disprove the allegation of non-service of the order of requisition. The records merely show the report of the Process Server that the order of requisition was handed over to an officer of the appellants who was present in the disputed premises, but he having refused to acknowledge the service of the order by putting his signature, it was served by affixation. If this fact had been placed on affidavit before this Court, the appellants would have got an opportunity to controvert the same. The manner in which possession of the requisitioned premises was taken as stated above, it is difficult for us to accept the statement of the Process Server that the order of requisition was served upon the appellants. The respondents, in our opinion, should have filed an affidavit sworn by the Process Server regarding the service of the order of requisition. The allegation of the appellants in the writ petition and in the application for interim order before us about the non-service of the order of requisition upon them stands uncontroverted and, apart from anything else, we have no other alternative than to accept the said allegation. In other words, as the said allegation of the appellants has not been controverted, there is no dispute about the non-service of the order of requisition. In the circumstances, we hold that the order of requisition has not been served upon the appellants and, consequently, the respondents acted illegally in dispossessing the appellants from the premises in question.

9. It is not disputed before us that no order of the Collector under Clause (a) or Clause (aa) of Section 4(1) of the Act has been served upon the appellants. It is the contention of the appellants that the provisions of Clauses (a) and (aa) are mandatory and therespondents had DO 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. It is urged that as the respondents have not served any such order or allowed the appellants the period of time as mentioned in Clause (a) or Clause (aa) to vacate the premises, the taking of possession of the premises in question by the respondents with police help was highly unjustified, arbitrary and illegal and the respondents should be directed to forthwith restore possession of the premises to the appellants.

10. Mr. J. N. Roy, learned Counsel appearing on behalf of the respondent No. 9, the Secretary of Suratirtha has, in view of an unreported Bench decision of this Court referred to later in this judgment, conceded before us at the very outset that in case of non-service of an order under Clause (a) or Clause (aa) of Section 4(1), the order of requisition cannot be supported. On the other hand, the learned Advocate-General appearing on behalf of the respondents Nos. 1 to 8 submits that the service of an order under Clause (a) or Clause (aa) of Section 4(1) is discretionary and not mandatory. He submits that it is the discretion of the Collector whether such an order will be served or not. It is contended by him that non-service of an order for delivery of possession of the requisitioned premises in question cannot render the order of requisition and the taking of possession of the requisitioned premises illegal and invalid. Section 4(1) provides as follows-

'4 (1). Where any premises are requisitioned under this Act the Collector may by notice in writing-

(a) order the person in occupation of the premises, if any, to vacate the premises within a period of ten days from the service of the notice;

(aa) order the landlord or the tenant, as the case may be, to remove the articles belonging to him, if any, and, where toe premises are requisitioned without any furniture therein, such furniture, within a period of fifteen days from the service of the notice;

Provided that the Collector may, for reasons to be recorded in writing, extend the said period up to two months; (b) order the landlord to execute such repairs as may be specified in the notice within such time as may be specified therein;

(c) if a landlord fails to execute any repairs in pursuance of an order under Clause (b) the Collector may cause the repairs specifiedin the order to be executed at the expense of the landlord and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the compensation payable.'

11. It is submitted by the learned Advocate-General that the word 'may' in Section 4(1) sufficiently indicates that the service of an order under Clause (a) or Clause (aa) is not at all mandatory, but it is discretionary with the Collector whether he will issue such an order or not. It has been pointed out by the learned Advocate-General that the word 'may' in the opening sentence of Section 4(1) also relates to Clauses (b) and (c) of Section 4(1). Our attention has been drawn to a Special Bench decision of this Court in Kartic Chandra De v. State of West Bengal, 1974 Cal LJ 1. In that case, the Special Bench held that the provision of Clauses (b) and (c) of Section 4(1) of the Act in so far as they imposed an obligation upon the landlord to effect whatever repairs he was asked to execute on pain of being made responsible for the costs and also liable to be imprisoned and fined for disobedience of the order was very unreasonable and, consequently, the said provisions infringed Article 19(1)(f) of the Constitution of India and were invalid and void, in coming to the said conclusion, the Special Bench observed that the whole matter relating to the repairs of the requisitioned premises was left entirely to the discretion of the Collector. On the basis of the said observation, it has been argued by the learned Advocate-General that the Special Bench had to make the observation because of the word 'may' in the opening sentence of Section 4(1). It is submitted by him that the word 'may' cannot be construed differently, that is, it cannot be held to be mandatory so far as Clauses (a) and (aa) are concerned and discretionary or directory so far as Clauses (b) and (c) are concerned. In support of this contention, the learned Advocate-General has placed reliance on a decision of the Supreme Court in Madanlal Fakirchand Dudhadiya v. Shree Chandgdeo Sugar Mills Ltd., : AIR1962SC1543 . It has been held by the Supreme Court that the words used in a section must be given their plain grammatical meaning. Where the Court deals with two sub-sections of a section it is necessary that the two subsections must be construed as a whole, each portion throwing light, if need be, on the rest. The two sub-sections must be read as parts of an integral whole and as being inter-dependant. The learned Advocate General has referred to the observation of Lord Atkin in Liversidge v. Anderson, (1941) 3 All ER 338 (361). He has also placed reliance on a decision of a learned single Judge of this Court in Administratrix in the Estate of Late N. C. Goenka v. State of West Bengal, (1976) 2 Cal LJ 162. In that case, the contention of the petitioner that as no notice under Clause (aa) of Section 4(1) of the Act was served, the requisition was bad, was rejected.

12. In this connection, we may refer to an unreported Bench decision of this Court in State of West Bengal v. Pulin Krishna Roy Estate (P.) Ltd., (F. M. A. No. 6 of 1970) disposed of on Aug. 25, 1980, which has been strongly relied on by Mr. Sankardas Banerjee, learned Counsel for the appellants. In that case also, the question was whether the provisions of Clauses (a) and (aa) of the Act were mandatory or not. It was held that although the expression 'may' had been used in Sub-section (1) of Section 4, the same could not but mean 'shall' or 'must' and the said provisions were, therefore, mandatory.

13. We have already come to the conclusion that the order under Section 3(1) of the Act has not been served on the appellants and, accordingly, the taking of possession of the premises was illegal and invalid. This finding is sufficient to dispose of the writ petition of the appellants. But, as much arguments have been made as to the effect of non-service of an order under Clause (a) or Clause (aa) of Section 4(1) of the Act, we would like to say a few words.

14. Normally, the word 'may' used in a statute should be construed as discretionary, but in the context of the statutory provision in which the word finds place, it may become necessary to interpret it as mandatory. In State of U. P. v. Jogendra Singh, : (1963)IILLJ444SC , the Supreme Court observed as follows:

'There is no doubt that the word 'may' generally does not mean 'must' or 'shall'. But it is well settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command.'

Keeping the above legal principle 'in view, we may proceed to consider whether the word 'may' in Section 4(1) imports discretion so far as Clauses (a) and (aa) are concerned. The Special Bench in Kartic Chandra De's case (1974 Cal LJ 1) (supra) has expressed the view that the whole matter relating to the repairs of the requisitioned premises is left entirely to the discretion of theCollector. This observation has been made by the Special Bench obviously due to the presence of the word 'may' in Section 4(1) of the Act. It is the contention of the learned Advocate-General that the same construction should be made of the word 'may' in respect of Clauses (a) and (aa) of Section 4(1). We shall presently consider this contention, but before we do that it may be observed that the decision of the Supreme Court in Madanlal Fakirchand's case : AIR1962SC1543 (supra) relied on by the learned Advocate-General in support of this contention is not applicable to the facts of the instant case. There the Supreme Court was considering the question whether payment of commission out of profits was outside the provisions of Sub-sections (1) and (2) of Section 76 of the Companies Act. It was observed that the two sub-sections must be read as a whole as parts of an integral whole. Sub-sections (1) and (2) of Section 76 relate to payment of commission. In our opinion, there can be, no doubt that in interpreting the sub-sections of a section of an Act providing for the same matter, all the sub-sections should be construed as a whole as parts of the integral whole. But where the two sub-section of a section of a statute provide for different matters, we are afraid, normally there is no need or necessity for construing, the sub-sections together. In the instant case, the subject-matter of Clauses (a) and (aa) of Sub-section (1) of Section 4 are completely; different from that of Clauses (b) and (c) of that, sub-section and, therefore, it is not necesssary to read all the clauses together as parts of the integral whole. All that we wish to point out that the facts in Madanlal Fakirchand's case (supra) in which the said rule of construction has been laid down by the Supreme Court are different from those in the present case before us.

15. Now coming to the question whether the word 'may' in Section 4(1) of the Act should be construed as discretionary or mandatory so far as Clauses (a) and (aa) are concerned, we are of the view that the construction would depend on as to who is in occupation of the premises at the time the order of requisition is made under Section 3(1) of the Act. The person in occupation of the premises under Clause (a) and the tenant under Clause (aa) may be a Government Officer or a Government department for the benefit of whom the premises are being requisitioned. In such a case, it is absurd to think that the Collector would make an order on the Government Officer or the Government Department to vacate the requisitioned premises. If the word 'may'in Section 4(1) is construed as mandatory in all cases, it will lead to an anomalous position, namely, even where the premises is requisitioned for the purpose of a Government Officer or the Government itself, already in occupation of the premises, the Collector will have to serve an order on such Officer or the Government, as the case may be, to vacate the premises. Obviously, therefore, the legislature in its wisdom has used the word 'may', so that in such cases the Collector is not to issue and serve an order to vacate. In other cases, however, when the premises is requisitioned for a public purpose other than for the purpose of a person in occupation of the premises or the tenant or the landlord of the same, a question naturally arises whether the Collector can claim discretion in the matter of serving an order to vacate on such person, landlord or tenant within the time mentioned in Clauses (a) and (aa). In other words, can the Collector take possession of the requisitioned premises without first requiring the person in occupation of the premises or the tenant or the landlord thereof to vacate the same within the prescribed period of time by the service of a notice in writing in that regard ?

16. Before we proceed to answer the question, let us consider the necessity for the enactment of Clauses (a) and (aa) of Section 4(1) of the Act. Section 3(1) provides for the making of an order of requisition of a premises and Section 3(2) enjoins the service of the order on the landlord or tenant of the premises. The next step that has to be taken to give effect to the order is to take delivery of the premises from the person or tenant in occupation of the same and, for that purpose, such person or tenant has to be called upon to vacate the premises and to deliver vacant possession thereof to the Collector. So long as the person in actual physical possession of the premises is not called upon to vacate the premises, he will not be obliged to do so, even though he is served with the order of requisition. Clauses (a) and (aa) of Section 4(1) are provisions for giving effect to the order of requisition by a notice in writing by the Collector ordering the person in actual occupation of the premises or the landlord or tenant thereof, as the case may be, to vacate the premises within the period as mentioned in the said clauses. Thus it is apparent that in order to give effect to the order of requisition, a notice in writing has to be served on the person in actual possession of the premises to vacate the same. Even though the permissive word 'may' has been used in Section 4(1) denoting discretion, such discretion has always to be exercised in favour of making an order in writing calling upon the person in possession of the premises to vacate. It may, however, be said that instead of a prior notice to vacate, the order of requisition can be carried out by taking delivery of possession of the premises simultaneously with the service of the order of requisition or after such time that may be convenient to the Collector. In our opinion, such a step will be arbitrary and against justice, equity and good conscience and the rules of natural justice as well The person in occupation of the premises must, in our opinion, be given a reasonable time to vacate the premises. What is reasonable time will depend upon the facts of each case; but so far as the Act with which we are concerned, there is no difficulty, for Clauses (a) and (aa) have specified the period of time which should be allowed to the person in occupation of the premises, or the landlord or the tenant thereof to vacate the same. There can be no doubt that the period of time as specified in Clause (a) or Clause (aa) is the minimum period and this is evident from the proviso to Section 4(1) authorising the Collector to extend the period up to two months for reasons to be recorded by him in writing. The proviso also gives an indication that a prior notice in writing under Clause (a) or Clause (aa) is obligatory. In our opinion, whether or not any statute relating to the requisition of any premises provides for any period of time to vacate the requisitioned premises by any person in occupation of the same, a reasonable time must be given to him to vacate by a prior notice in writing. So 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, the word 'may' in Section 4(1) of the Act should be construed as 'shall'. This is also consistent with the principle: 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislator of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised.' (Craies on Statute Law, 7th Edn page 285). The provisions of Clauses (a) and (aa) of Section 4(1) of the Act have conferred a power on the Collector to require the person in occupation of the premises or the landlord or tenant of such premises tovacate the premises within a certain period. This power has been conferred on the Collector undoubtedly for the benefit of such persons and it must be exercised. The unreported Bench decision in State of West Bengal v. Pulin Krishna Roy Estate (P.) Ltd. referred to above, laying down rightly that the provisions of Clauses (a) and (aa) of Section 4(1) of the Act are mandatory applies, as discussed above, to cases where a premises is requisitioned for a public purpose other than for the purpose of the person, landlord or tenant in occupation of the premises. It is true that in laying down the above proposition, the Division Bench has not considered the decision of the learned single Judge in Administratrix in the Estate of Late N. C. Goenka v. State of West Bengal, (1976) 2 Cal LJ 162 (supra) as pointed out by the learned Advocate-General, but that will not, in our opinion, take away or in any way lessen the binding force of the decision. In N. C. Goenka's case (supra), no argument appears to have been made as to the obligation of the Collector to serve a notice in writing on the petitioner and the learned Judge has no occasion to decide the question with which we are concerned. In the circumstances, we hold that as the possession of the requisitioned premises has been forcibly taken from the appellants without serving on them a prior notice in writing by the Collector under Clause (a) or Clause (aa) of Section 4(1) of the Act, the respondents bad illegally and in violation of the provisions of Clauses (a) and (aa) and also in disregard of the rules of natural justice taken possession of the requisitioned premises from the appellants. The respondents are, therefore, liable to forthwith restore possession of the requisitioned premises to the appellants.

17. In view of the above findings, we do not think it necessary to embark upon the adjudication of the remaining two points urged on behalf of the appellants, namely.

(1) the State Government and its Officers, being respondents Nos. 1 to 8, had acted illegally and mala fide in issuing the order of requisition and in dispossessing the appellants from the requisitioned premises, and

(2) Suratirtha being a private profit-making institution, the order of requisition for the purpose of Suratirtha was not for any public purpose and, as such, it was illegal and invalid. These two points are kept open and we have not expressed any opinion on the same.

18. In the result, we make the rule absolute and direct that a writ in the nature ofMandamus 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. Further, it is directed that if the respondents issue a fresh order of requisition in respect of the said premises, either under the Act or any other Act they shall, before taking possession of the same, serve on the appellants a notice in writing giving them at least a period of fifteen days to vacate the said premises or any portion of the same in respect of which the order of requisition may be issued and served. In case any such fresh order of requisition is issued, the appellants will be at liberty to challenge the same in accordance with law and will be entitled to urge the other grounds as to the order of requisition being mala fide and not being for a public purpose. We make it clear that we have not expressed any opinion on the merits of the application of Suratirtha praying for the setting aside of the ex parte decree under Order 9, Rule 13 of the Civil P. C. now pending before the learned Second Munsif at Alipore and this judgment is without any prejudice to the rights and contentions of Suratirtha in the said proceedings under Order 9, Rule 13.

19. The appeal is also allowed, but in view of the facts and circumstances of the case, there will be no order for costs either in the Rule or in the appeal.

20. It may be recorded that Mr. Rathindra Nath Banerjee, Advocate, the Special Officer, has stated before us that the Secretary of Suratirtha, in terms of his undertaking given to this Court, had delivered possession of the premises to him (Special Officer) at about 5 P. M. on Monday last up to which date the time to deliver possession under the undertaking was extended by us by an oral order made on Friday last, and the Special Officer has, as directed by us, delivered possession of the premises to the appellants. Mr. Sibdas Banerjee, learned Counsel for the appellants, admits that the possession of the requisitioned premises has been delivered to the appellants by the Special Officer. It may be recorded that the Special Officer has been paid his remuneration and he acknowledges the same before us. The Special Officer is now discharged.

A.N. Sen, C.J.

21. I agree.


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