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Abdul Hamid Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberMatter No. 162 of 1951
Judge
Reported inAIR1953Cal223
ActsConstitution of India - Articles 31(2) and 226; ;West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Section 3(1)
AppellantAbdul Hamid
RespondentThe State of West Bengal and ors.
Appellant AdvocateSubimal C. Roy, Adv.
Respondent AdvocateA.K. Mukherjee, Adv.
Cases ReferredProvince of Bombay v. Khusaldas S. Advani
Excerpt:
- .....counsel for the petitioner that the requisition in the present case has not been made for a public purpose. the question whether this matter is justiciable has been the subject of much controversy in this case. mr. roy has relied on some observations of b.k. mukherjea and mahajan jj. in the case of -- 'province of bombay v. khusaldas s. advani', (1950) s c r 621 and on the observations of harries c. j. in -- 'west bengal settlement kanungo co-operative credit society ltd. v. mrs. bella banerjee', 55 cal w n 778, in support of his argument that the question whether a requisition in a particular case is for a public purpose or not can be enquired into by the court.4. section 3(1) of the act (w. b. act 5 of 1947) is as follows:section 3(1): whenever it appears to the provincial.....
Judgment:

Bose, J.

1. This is an application under Article 226 of the Constitution for appropriate writs for cancellation of an order of requisition dated 8th May 1950, purported to be passed under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (Act 5 of 1947) and for direction upon the opposite partics to forbear from giving effect to that order or taking any steps or proceedings thereunder.

2. The petitioner is the owner of premises No. 2 Chhaku Khansama Lane, Calcutta. The case of the petitioner is that prior to March 1950 the petitioner let out the premises to one Yusuf Miah at a rent of Rs. 300 per month. In or about the month of March 1950 communal disturbances broke out in Calcutta and the area where the petitioner's premises was situated was badly affected by such disturbances, with the result that refugees from East Pakistan and other persons forcibiy ousted all the sub-tenants under the said Yusuf Miah (who were all Muslims) from the said premises. Yusuf Miah immediately thereafter left for East Pakistan. In April 1950 the Nehru-Liaquat Ali Pact being entered into, the said Muslim tenants who were driven out of the said premises by the refugees made an application on or about 20th April 1950 to the Deputy Commissioner of Police. North, requesting him to restore possession of the said premises which was in the wrongful occupation of the refugees and others, to the said tenants irom whom possession had been wrongfully taken. This petition of the tenants is signed by one Khaliluddin and one Md. Ishaq and is counter-signed by Abdul Hamid the petitioner in the present proceedings. This petition further shows that one Yusuf was the representative of the tenants who were driven out of the premises and he made complaints to the Thana about the forcible eviction; but no police assistance was available.

Yusuf Miah thereafter having left for Pakistan on or about 23rd April 1950. the petitioner at the request of one of the tenants who were actually residing at the said premises granted a tenancy to Abdul Majid for a period of one year and accepted a sum of Rs. 325 as advance payment. This Abdul Majid is respondent 4 in the present proceedings. On 1st May 1950 the Police authorities removed the refugees and other persons who were in wrongful occupation of the premises and made over possession to the Muslim tenants who were in the premises at the time of commencement of the communal disturbances. On 2nd May 1950 the refugees again started creating trouble and threatened the tenants with dire consequences in case they rontinued to occupy the said premises. Apprehending a breach of the peace three of the tenants -- Mushtaq Ahmed, Khaliluddin and Md. Ishaq and the petitioner applied to the Deputy Commissioner of Police for protection.

On 8th May 1950 respondent 3 who is the Assistant Secretary to the Government of West Bengal issued an order in writing purporting to requisition the said premises under Section 3(1) of the said W.B. Act 5 of 1947 and notice of such acquisition was sent to the petitioner on or about 30th May 1950 requiring the petitioner to place the property at the disposal of the First Land Acquisition Collector on that date. On the same date the Land Acquisition Collector through his representative took possession of the major portion of the said premises. No notice of the requisition was, however, served on either Yusuf Miah or Abdul Majid who were the direct tenants of the petitioner. On 22nd May 1950, Abdul Majid commenced criminal proceedings against the petitioner on a charge of cheating under Section 420, Penal Code.

On or about 24th May 1950 the petitioner made an application to respondent 3 setting out the events that had taken place in the meantime and requesting respondent 3 to recall the order of requisition but the respondent 3 did not accede to the petitioner's application. On 31st May 1950 respondent 2 served notice on the petitioner directing him to remove all articles lying in two rooms of the said premises, by 16th June 1950. On 22nd June 1950, the petitioner appealed to the Hon'ble Minister of the Revenue Department. It was pointed out in this petition that the Muslim tenants who had been occupying the entire building had been forcibly displaced by the refugees and the local Goon-das and they were roaming about and had no place where they could take shelter. It is also stated in this petition that ultimately with Police help the premises was vacated and made over to the petitioner. In the petition the facts that a new agreement of tenancy was entered into with Abdul Majid and that the latter had filed a criminal case against the petitioner are also recited.

This appeal was also rejected and the petitioner was informed by a letter from respondent 3 bearing date 28th August 1950 that the prayer of the petitioner for de-requisitioning the premises with a view to reinstate the old displaced tenants could not be granted as the house had been occupied by several families of Government employees, who had to be brought down to Calcutta for disturbances in East Bengal. Thereafter on 1st November 1950, a notice was served on the petitioner under Section 4 of W. B. Act 5 of 1947 calling upon the petitioner to execute certain repairs to the premises particulars whereof were specified in a schedule annexed to that letter. As the Government did not succeed in obtaining possession of all the rooms in the said premises a notice was served upon the petitioner on 6th November 1950 intimating that if possession was not delivered by 10th November 1950 forcible possession would be taken by breaking open the locks with the help of Police. On 10th November 1950, the petitioner wrote to respondent 2 pointing out that the locked up rooms which the Government intended to break open were in the occupation of two tenants named Mushtaq Ali Ahmed and Md. Ahsan who refused to vacate the rooms in spite of the fact that the Government order of requisition was shown to them.

Thereafter the Government, however, managed to take possession of the remaining rooms from the petitioner and served him with further notices to execute repairs on the said premises and to pay municipal taxes in respect of the said premises as demanded by the Corporation of Calcutta. In the meantime the criminal proceeding which had been pending for about nine months was disposed of on 27th February 1951. The Magistrate after hearing the prosecution witnesses and the evidence given on behalf of the accused acquitted the petitioner of the charge of cheating. The notices calling upon the petitioner to execute the repairs and to pay out the Corporation taxes were served on the petitioner between 15th March 1951 and 15th May 1951. On 18th July 1951, the petitioner moved this Court and obtained a Rule Nisi.

3. It has been contended by Mr. Subimal Roy, the learned counsel for the petitioner that the requisition in the present case has not been made for a public purpose. The question whether this matter is justiciable has been the subject of much controversy in this case. Mr. Roy has relied on some observations of B.K. Mukherjea and Mahajan JJ. in the case of -- 'Province of Bombay v. Khusaldas S. Advani', (1950) S C R 621 and on the observations of Harries C. J. in -- 'West Bengal Settlement Kanungo Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee', 55 Cal W N 778, in support of his argument that the question whether a requisition in a particular case is for a public purpose or not can be enquired into by the Court.

4. Section 3(1) of the Act (W. B. Act 5 of 1947) is as follows:

Section 3(1): Whenever it appears to the Provincial Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing, requisition such premises:Provided that no premises exclusively used for purpose of religious worship shall be requisitioned under this section.

5. Section 3(2) of the Act which is also relevant for the purpose of this case is set out hereunder:

Section 3(2) -- An order under Sub-section (1) shall be served on the landlord, and where it relates to premises in occupation, of a tenant also on such tenant in such manner as may be prescribed.

6. It has been held in -- 'Point of Ayr Collieries Ltd. v. Lloyd George', (1943) 2 All E R 546 and -- 'Carltona Ltd. v. Commissioners of Works',' (1943) 2 All E R 560, that where an Act or Regulation commits to an Executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith'. Mr. A.K. Mukherjee, the learned counsel for the respondents, placed reliance on these cases. These cases have been followed in this Court in the case of -- 'A.C. Mohamed v. Sailendra', 54 Cal W N 642, which was also a case of requisition under W. B. Act 5 of 1947 and in the case of -- 'Patri Shaw v. R.N. Roy', 54 Cal W N 855, which was a case of a requisition under the West Bengal Security Act, 1943. These Calcutta cases have been approved of in --'Province of Bombay v. Khusaldas S. Advani', (1950) S C R 621.

Now if the matter had rested there it might toe said that the question of whether a requisition was for a public purpose or not could not be gone into in a Court of law. But Harries C. J. in the case of -- 'W. B. S. K. Co-operative Society Ltd. v. Bella Bannerjee', 55 Cal W N 778, has expressed the view that the provisions of the Constitution of India have brought about a change in the situation and the question whether a particular acquisition is for a public purpose is justiciable in a court of law. The learned Chief Justice has attempted to draw a distinction between the case of requisition and acquisition (p. 800) but it appears to me that Article 31(2) covers cases of both requisition and acquisition. In view of this decision in 'Bella Bannerjee's case' I am bound to hold that the matter whether the requisition in the present case was for a public purpose or not is justiciable.

7. Mr. Subimal Roy has submitted that the respondents have not placed before the Court sufficient particulars about the alleged public purpose to enable the Court to judge whether the purpose of requisition was really a public purpose or not. Further it is submitted that the respondents have made different statements as to the nature of the alleged public purpose in the affidavits and in the correspondence and from this the Court must conclude that the requisition is not bona fide and is not for public purpose. It is pointed out that the affidavit of respondent 2 states that the requisition was made for accommodation of employees of the Government (Para 6) but in the letter annexed to this affidavit dated 28th August 1950 it is stated that the premises are in the occupation of several families of Government employees who had to be brought down to Calcutta for disturbances in East Bengal. The affidavit of respondent 2 is that the house was required for some of the employees of the Government of West Bengal. It is true that beyond making these statements of the vaguest kind no particulars have been given as to the names and addresses of the employees nor as to the nature of offices held by such employees. When the fact has been challenged one would expect that the Government would come forward with more details. The fact, however, remains that no detailed particulars are available.

The question, however, is whether this fact by itself justifies this Court in finding that the order of requisition was not for public purpose or was passed mala fide. It appears to me that it will not be proper for this Court to come to any such conclusion. Although there is some difference in the wordings of the affidavits and the correspondence, as to the purpose for which the order of requisition was made, I think there is no difference in substance and the acquisition for employees of Government whether they are refugees or not is acquisition for a public purpose. In -- 'Sudhindra Nath v. Sailendra Nath', 87 Cal L J 140, Harries C. J. held that requisition for a minister was for a public purpose. It may be that in the present case the employees concerned are not entitled to as commodious or comfortable an accommodation as the Minister but the premises in the present case do not appear to be of such a nature that it cannot be honestly requisitioned for some subordinate officers of the Government. In 'Khusalda's case' Mukherjea J. has held that the housing of refugees is a public purpose. 'Province of Bombay v. Khusaldas S. Advani', 1950 S C R 621 at p. 687. I am, therefore, unable to hold that the requisition in this case was mala fide or it was not made for a public purpose.

8. It has been next contended by Mr. Subimal Roy that inasmuch as no notice of the Order of requisition was served on the tenants as required by Section 3(2) of the Act the proceedings for requisition are void. There is no doubt that the premises had been let out to some Muslim tenants but the case of the petitioner is that he first let it out to one Yousuf Miah and under Yousuf Miah there were some sub-tenants. The petition of the tenants dated 20th April 1950 states that Yousuf Miah was their representative. So it is clear that Yousuf Miah was a tenant under the petitioner, but according to the case of the petitioner this Yousuf Miah abandoned his tenancy and left for Pakistan in April 1950 and his whereabouts could not be traced. So he was not admittedly in possession of the premises at the time of requisition. It is true that the petitioner had entered into an agreement of tenancy with another person of the name of Abdul Majid in April 1950 but he did not make over possession ofthe premises to the new tenant before or atthe time of requisition, and because possessionwas not made over to the new tenant the latterfiled criminal proceedings against the petitioner.Some of the sub-tenants of Yousuf Miah hadperhaps kept some of the rooms under lock andkey but they were not tenants of the petitioneraccording to the petitioner himself. Further itappears to be a fact from the petition dated22nd June 1950 which was addressed to theRevenue Minister that with the help of thepolice the petitioner succeeded in driving outthe refugees and in having vacant possessionmade over to him, and the petitioner startedmaking repairs to the premises. The presenceof a wooden ladder and the presence of sandand lime in some of the rooms indicate thatthe repairs were going on when the Government issued the order of requisition. It appears that the premises was not in the occupation of Yousuf Miah or Abdul Majid who arealleged to be the tenants of the petitioner andin the circumstances it cannot be said that therequirements of Section 3(2) had not been compliedwith or the proceedings for requisition werevoid.

9. Moreover, the petitioner has been guilty of unreasonable delay in moving this Court and no satisfactory explanation is forthcoming as to why the petitioner did not take steps earlier in the matter. The order of requisition was made in May 1950 and by August 1950 all his representations to the various authorities were rejected and he was totally deprived of possession of the premises in November 1950 but yet he took no steps till July 1951. It is perhaps the Government is pressing for repairs of the premises and the petitioner finds that the repairs will cost him a substantial amount that he is trying to get rid of the order of requisition. However it is not for this Court to speculate as to the reasons which prompted the petitioner to make this application. It is sufficient to point out that the materials on record do not justify this Court in interfering under Article 226 of the Constitution. In the result this petition fails and the Rule is discharged. I make no order as to costs.


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