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J.K. and Sons Vs. Dy. Secy., Land and Land Revenue Deptt. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberMatter No. 595 of 1976
Judge
Reported inAIR1977Cal232
ActsWest Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Section 3(1); ;Constitution of India - Articles 226 and 227
AppellantJ.K. and Sons
RespondentDy. Secy., Land and Land Revenue Deptt. and ors.
Cases ReferredChandra Kumar Datt v. Secy.
Excerpt:
- .....description given in the order of requisition is 'suraya house 165, rabindra sarani (entire second floor) calcutta.' the petitioner had no difficulty in realising which was the premises which was the subject-matter of requisition. it was specifically mentioned that it was 'suraya house' and the petitioner also proceeded on that basis. sufficient particulars had been given in the order of requisition. it is not being stated that there is any other 'suraya house' in that street. there is only one 'suraya house' the 2nd floor of which was previously occupied by the commissioner of police. the letter of demand also described the same in such fashion. under these circumstances, merely because due to the change of name of some street there is any mistake, at ttie most this is a mere.....
Judgment:
ORDER

Bimal Chandra Basak, J.

1. This application under Article 226 of the Constitution is directed against an order of requisition passed on 22nd June, 1976 under Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as the said Act).

2. The petitioner's case, as made out in the petition, is as follows : The petitioner is a partnership firm registered under the Partnership Act, 1932 and having its office at No. 9, Rabindra Sarani, Calcutta-1. It is stated that one Messrs. Cutch Oil & Allied Industries (1949) Private Ltd. is the owner of No. 9, Rabindra Sarani, Calcutta, formerly known as No. 165, Lower Chitpur Road, Calcutta. It is stated that the petitioner is the landlord and/or lessee of a portion of the second floor of No. 9, Rabindra Sarani, Calcutta. The second floor of the said building contains two main halls and they have been let out and/or rented to the Commissioner of Police, Calcutta. The first hall is in the possession of Commissioner of Police, Calcutta, on and from 30th June, 1971 and the second hall is in possession of the respondent No. 3 on and from 7th August, 1971. The rent agreed to be paid on account of the said two halls at the second floor of the said building was Rs. 2,030/- per month. The rate of rent was inclusive of taxes and cost of repairs but exclusive of service charges for electricity, water supply, cleaning etc. The service charges excluding the electricity were agreed to be Rs. 385/- per month. It is the case of the petitioner that the respondent No. 3. the Commissioner of Police, Calcutta, has wrongfully and illegally failed and/or neglected to pay the aforesaid rent on account of the said premises as also the service charge and the charges on account of electricity. The dues on account of the said charges would be a sum of Rs. 73,898.56 p. for the period from 30th June, 1971 to March 1976 for which the petitioner had already submitted its hills and have demanded the payment on account of the same. However, in spite of repeated demands, the respondent No. 3 is wrongfully and illegally not paying the said dues to the said petitioner. Subsequent to the said bill, the petitioner had submitted its bill for the period of April and May 1976. All the aforesaid amounts are still due and owing from the respondent No. 3 to the petitioner. It is alleged that on 21st June. 1976 at 4-10 P. M. the petitioner received a communication from the respondent No. 1 containing purportedly two orders. The first order dated 22nd June, 1976 is the order of requisition issued by the respondent No. 1 and the second order numbering 1818 is by the First Land Acquisition Collector, Calcutta directing the petitioner to place the property at the disposal and control of the said respondent on and from 22nd June, 1976 at 10-30 A. M. This is the order challenged in this proceeding.

3. In this case two affidavits have been affirmed on behalf of the respondents. In one affidavit affirmed by Nirmal Chandra Roy, the First Land Acquisition Collector, Calcutta, on the 12th July, 1976 it has been stated that the notices were duly served on the owner of the said premises. It is stated that the Commissioner of Police, Calcutta, was a tenant of second floor of the said premises No. 165. Rabindra Sarani and it was in possession of the Commissioner of Police. It was further stated that the second floor was requisitioned for the accommodation of the Branch Office of Home (Special) Department, Government of West Bengal. It was further stated that the said order was duly served upon Sm. Sabitri Debi, Sm. Sita Devi, Sm. Radha Devi Shraff and Sm. Sajana Devi Sharaff of 136, Cotton Street, Calcutta and Messrs. J. K and Sons of No. 9, Rabindra Sarani the owners of the said premises and also the Commissioner of Police who was the tenant of the same at the relevant time. The persons accepted the service of the order. It is stated that by an order dated . 21st June, 1976, The First Land Acquisition Collector directed the aforesaid persons to place the said property at the disposal and control on and from 22nd June 1976 at 10-30 A. M. The said order was also served upon them on 21st June, 1976. Notice was also served on the Deputy Secretary. Pursuant to the above, an officer went to take possession of the said premises at the appointed time. Representatives of the Home Special Department and of the Commissioner of Police were present in time but none on behalf of the owners turned up. The possession of the entire second floor was taken from one Sri Sibaji Gupta, Sergeant, representative of the tenant and the possession was again delivered to Ajit Kumar Chakravarty, Special Officer, the representative of the allottee department Home (Special). The possession certificates were duly signed.

4. In an other affidavit affirmed by one Nalini Kumar Chakrabarty Assistant Secretary, Home (Special) Department on the 12th July, 1976, it has been stated that due to increase of work in the Department for Home (Special Branch) the space occupied by the said department in the 'Writers' Buildings became insufficient and further accommodation had become needed to run the department efficiently. Thereafter the question of further accommodation of the said department was taken up with Public Works Department, Government of West Bengal. That department having failed to spare further accommodation in Writers' Buildings attempts were being made to secure additional accommodation as near the Writers' Buildings as possible. As soon as the Home Department came to know that Second Floor of the said premises No. 165. Rabindra Sarani, Calcutta, would be vacated by the Commissioner of Police, a tenant for the Second floor of the said premises, it was visited and found that the said premises (second floor) would be suitable for housing a record room as well as skeleton staff for the Home, Special Branch. The said premises are at 5/6 minutes' walk from Writers' Buildings. Thereafter the said department sent proposal to Land and Land Revenue Department to requisition the second floor of the said premises.

5. On behalf of the petitioner it was contended firstly that the order has been passed mala fide. In this connection, my attention has been drawn to paras. 3, 4 and 5 of the petition wherein allegations have been made regarding the tenancy of the Commissioner of Police and the alleged non-payment of rent which I have already set out. Even if the Commissioner of Police was a tenant in respect of the requisitioned premises and even if a huge amount was due on account of rent of the same, that cannot, in my opinion, by itself, make the order bad or mala fide. In this particular case I am satisfied that order of requisition in question was made for public purpose which in fact was not disputed before me. Accordingly, even if the Commissioner of Police did not pay rent that would not make a subsequent requisition order invalid. Accordingly, there is no merit in this contention and I reject the same.

6. The only other point sought to be argued before me was that the requisition was being made in respect of a wrong house and it was served on the wrong person. In my opinion this point cannot be allowed to be urged before me because this has not been taken in the petition and this involves questions of fact. It was stated that this point was taken in a supplementary affidavit but it does not appear that any leave of the Court was obtained to affirm Or use any such supplementary affidavit. Moreover, the respondents had no opportunity to deal with the same. In any event there is no merit in this contention. Regarding the allegation that wrong persons have been served, I should point out that in para. 5 of the petition itself it is stated that the petitioner had suddenly received communication from the respondents Nos. 1 and 2 containing purportedly two orders. In that view of the matter it is not open to the petitioner to raise any such contention. In this context I may also refer to the affidavits affirmed on behalf of the respondents mentioned by me earlier. In any event, in this application the petitioner cannot challenge the order on such ground because an objection as to non-service of notice can properly be taken not by third parties but only by the persons on whom the notice is not served. Invasion of the rights must be of the petitioner. Noor-banu v. Deputy Custodian General, : AIR1965SC1937 (Para. 10); Chandra Kumar Datt v. Secy., Frank Ross & Co. Ltd., 1971 Lab 1C 790 (Cal). (Paras 6 and 14).

7. Regarding the allegation that wrong premises have been requisitioned it is purely an afterthought. This premises is known as Suraiya House. It appears that previously this premises was numbered as 165, Lower Chitpur Road. Now it is known as 9, Rabindra Sarani. The description given in the Order of requisition is 'Suraya House 165, Rabindra Sarani (entire second floor) Calcutta.' The petitioner had no difficulty in realising which was the premises which was the subject-matter of requisition. It was specifically mentioned that it was 'Suraya House' and the petitioner also proceeded on that basis. Sufficient particulars had been given in the order of requisition. It is not being stated that there is any other 'Suraya House' in that street. There is only one 'Suraya House' the 2nd floor of which was previously occupied by the Commissioner of Police. The letter of demand also described the same in such fashion. Under these circumstances, merely because due to the change of name of some street there is any mistake, at ttie most this is a mere irregularity which would not make the order bad. The petitioner had no difficulty in ascertaining which premises are being requisitioned. Accordingly, there is no merit in this contention.

8. No other point was raised before me. Accordingly, the application is dismissed and the Rule discharged. All interim orders are vacated. No order as to costs.

9. Prayer for stay of the operation of the order is rejected

10. Sometime after the matter was heard and judgment delivered by me, Mr. S. L. Saraf appeared before me and said that I should recall the order as he had no opportunity to make submissions on behalf of the petitioner on whose behalf he was appearing. I rejected such prayer for the reasons which would appear from the 'Dictated Order' passed by me.


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