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State of West Bengal Vs. A.C. Mohammed - Court Judgment

LegalCrystal Citation
SubjectTenancy;Arbitration
CourtKolkata High Court
Decided On
Case NumberAppellate Ori. Decrees Nos. 97 and 177 of 1957
Judge
Reported inAIR1969Cal531
ActsWest Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Sections 3(1), 3(3) and 11(1); ;Arbitration Act, 1940 - Section 2
AppellantState of West Bengal
RespondentA.C. Mohammed
Appellant AdvocateN.C. Chakraborty and ;Bijan Behari Mitra, Advs. in F.A. No. 97 of 1957, ;J.K. Sen Gupta, ;U.C. Mallik and ;Bikash Chandra Mallik, Advs. in F.A. No. 177 of 1957
Respondent AdvocateN.C. Chakraborty and ;Bijan Behari Mitra, Advs. in F.A. No. 177 of 1957, ;J.K. Sen Gupta, ;U.C. Mallik and ;Bikash Chandra Mallik, Advs. in F.A. No. 97 of 1957
Excerpt:
- .....no. p-17, mission row extension, calcutta (1st, 2nd and 3rd floors), under the west bengal premises requisition and control (temporary provisions) act, 1947. the dispute was with regard to the monthly compensation, payable for the said requisition. as there was no agreement between the parties on the point, there was a reference under section 11 (1) (b) of the above act. in this reference, an award was made by the arbitrator and both parties, being dissatisfied with the same, have filed the instant appeals. the first appeal (f. a. no. 97 of 1957) is by the state of west bengal, the other appeal (f. a. no. 177 of 1957) is by the claimants m/s. a. c. mohammad. the prohibitory order under section 3 (3) of the above act was issued on 25th february, 1949. it was actually served on 5th.....
Judgment:

P.N. Mookerjee, J.

1. These aretwo appeals, arising out of the requisition of premises No. P-17, Mission Row Extension, Calcutta (1st, 2nd and 3rd floors), under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947. The dispute was with regard to the monthly compensation, payable for the said requisition. As there was no agreement between the parties on the point, there was a reference under Section 11 (1) (b) of the above Act. In this reference, an award was made by the arbitrator and both parties, being dissatisfied with the same, have filed the instant appeals. The first appeal (F. A. No. 97 of 1957) is by the State of West Bengal, the other appeal (F. A. No. 177 of 1957) is by the Claimants M/s. A. C. Mohammad. The prohibitory order under Section 3 (3) of the above Act was issued on 25th February, 1949. It was actually served on 5th March 1949. The prohibitory order was in regard to the entire premises, P-17, Mission Row Extension except the ground floor. The actual requisition was by the order, dated 7th June, 1949, and it was limited to 1st, 2ndand 3rd floors. Thereafter, from time to time, the date of delivery of possession was extended and, eventually, possession was taken on 30th August, 1949. On 7th September, 1950, the requisitioned property appears to have been derequisitioned, but the prohibitory order was formally withdrawn on 1st December, 1950. On 20th November, 1952, there was an offer from the Government of monthly compensation at the rate of Rs. 3847.50 P. The claimant was not inclined to accept the same and he made a claim of monthly compensation at the rate of Rs. 6075/-per month for the above requisitioned property. In his claim petition, however, there were claims made also under other heads.

2. Briefly, the period may be divided into four parts: (i) from 25th February, 1949, the date of issue of the prohibitory order to the date, preceding actual requisition or requisition order, namely, 6th June, 1949; (ii) from 7th June, 1949 the date of actual requisition order, to 29th August, 1949, the date preceding the taking of possession; (iii) 30th August, 1949, to 7th September, 1950, the date of derequisition or redelivery of possession; (iv) 8th September, 1950, to 1st December, 1950, the last date being the date when the prohibitory order was formally; withdrawn. The claimant claims compensation for the entire period from 25th February, 1949, to 1st December, 1950. He also claims compensation not only for the three floors, actually requisitioned, namely, 1st, 2nd and 3rd, but also for the other floors excepting the ground floor, namely, the 4th, 5th and 6th floors, which according to him, were affected by the above requisition, as the prohibitory order, issued earlier, prevented him from making full use of the same.

3. The learned Arbitrator has held that he had no jurisdiction to go into any other question except the monthly compensation for the requisitioned property, namely, the 1st, 2nd and 3rd floors of the above premises, as, by the terms of his appointment, any other claim would be outside the reference before him. The learned Arbitrator has, accordingly, rejected the claimant's contention with regard to the other floors except the three floors, 1st, 2nd and 3rd of the requisitioned premises, P-17, Mission Row Extension. He has further held that, with regard to the period, the claimant was entitled to compensation only from date of taking of possession, namely, 30th August, 1949 to the date of actual derequisition, when possession was redelivered namely, 7th September, 1950, and he has rejected the claimant's claim with regard to the earlier period from 25th February, 1949, upto 29th August, 1949, and also for the later period, from 8tb September, 1950, to 1st December, 1950. The learned Arbitrator, however, has accepted the claimant's case with regard to the quantum of compensation and he has fixed the same at Rs. 6075/- per month as claimed by the claimant in answer to the Government's offer of Rs. 3847.50 P. which was supported before him on behalf of the Government.

4. In the State's appeal, we are mainly concerned with this quantum of compensation as, according to the State, the Arbitrator's award on this point is on the excess side in favour of the claimant.

5. The claimant's appeal, on the other hand, namely, F. A. No. 177 of 1957, relates to the other questions before the Arbitrator, namely, his refusal to go into any of the other claims, that is, relating to the other floors, and also his refusal to award any compensation except for the period, 30th August, 1949, to 7th September, 1950.

6. The appeals have been argued before us at length on both sides and all relevant materials on record have been placed before us with the utmost scrutiny.

7. It is necessary, at this stage, to set out the different documents, on whichthe decision of these appeals will depend.

8. In the first place, the relevant order or notification, appointing the arbitrator, which is to be found at page 18 of Part I of the paper book in First Appeal No. 97 of 1957 read as follows:

'Government of West Bengal Land and Land Revenue Department Requisition Notification No. 18842 Requisition dated Calcutta, the 26th September, 1955.

Whereas the premises specified in the Schedule below were requisitioned under Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947;

And whereas no agreement can be reached in respect of the amount of the monthly rent compensation payable on account of such requisition of the said premises;

Now, therefore, in exercise of the power conferred by Clause (c) of Sub-section (1) of Section 11 of the said Act, the Governor is pleased to appoint Shri N.C. Chakravarti, Additional District and Sessions Judge, 24 Parganas, as an Arbitrator for the determination of the amount of such compensation.

The Schedule Premises No. P-17, Mission Row Extension (1st, 2nd and 3rd floors) CalcuttaM/s. A. C. Mohamed,

'A. C. House',

P-16, Bentinck Street, Calcutta

(Owners)

By order of the GovernorS.D.11.1p.Sd/- H. Mookerjee.

Assistant Secretary to the Government of West Bengal'

9. The claims of the claimant under the different heads are to be found at pages 2 to 3 of the said paper book. It deals firstly with the quantum and the period and also the loss suffered by the claimant by the requisition under other heads under several categories. This was later on supplemented by their petition, which is found at pages 5 to 7 of the same paper book and the period of claim was extended by including therein the period from 8th September, 1950 to 1st December 1950, on which last date the prohibitory order was formally withdrawn.

10. In view of the terms of appointment of the Arbitrator, which we have set out above, it is clear that, his view, that he was precluded from going into any question, other than the question of monthly compensation for the property, actually requisitioned, namely. 1st, 2nd and 3rd floors of premises No. P-17, Mission Row Extension, must be upheld. For his other claims, it any, under the Law, the claimant must seek his remedy elsewhere and, in the instant proceeding, which is of a limited character and arises on a reference, strictly limited by theterms thereof, the claimant will not be entitled to have any relief in respect of the same. This part of the award of the learned Arbitrator, therefore, will have to be upheld and, to that extent, the claimant's appeal F. A. 177 of 1957 will have to be dismissed.

11. With regard to the period, however, the claimant is entitled to succeed in part. It is true that the prohibitory order, was actually issued on 25th February, 1949. But the prohibitory order, which is printed at pages 63 to 64 of Part II of the above paper book, is in these terms:

'Government of West Bengal

Land Revenue Department

Requisition Branch

No. 130/49

Calcutta, the 25th February, 1949,

Order

Whereas it is proposed to requisition the premises described in the Schedule below for a public purpose under Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act V of 1947):

Now, therefore, in exercise of the power conferred by Sub-section (3) of Section 3 of the said Act, the Provincial Government is pleased to direct that M/s. A. C. Mohammed & Co., P. 16, MissionRow Extension, Calcutta shall not, without the permission of the Provincial Government in any wav dispose of or structurally alter, the premises in any manner until further orders.

The ScheduleDescription of premisesP-17, Mission Row Extension, Calcutta(except ground floor).Received By order of the Governor,No. 1009/49 sd/_ R.N. BhattacharjeeDated: 5th March 1949. 25-2-49 Assistant Secretary to the Government of West Bengal. P.T.O(On the back) No. Copy forwarded to M/s. A. C. Mohammed & Co., P/16. Mission Row Extension, Calcutta, Landlord of the premises referred to in the Order prepage. (The Land Acquisition Collector, Calcutta) Illegible The 4-3-49 First Land Acquisition Collector, Calcutta.'

It definitely left an option to the claimant to do the things prohibited with the permission of the State Govt. It is true that there were some attempts to have the requisition withdrawn but there was no actual prayer for permission to do anything, which was prohibited under the said order. In the circumstances, the prohibitory order in question cannot be held to absolutely debar the claimant from undertaking the things prohibited merely because of the issue or service of the said prohibitory order. In this view, the claimant will not be entitled to have any relief in respect of the period, 25th February, 1949, upto 6th June, 1949. The position, however, becomes materially different from 7th June, 1949, on which date the actual requisition order was issued. This order is to be found at page 65 of Part II of the above paper book and it reads as follows:

'Government of West Bengal

Land and Land Revenue Department

Requisition Branch

No. 130/- 49

Calcutta, 7th June. 1948 (?)

Requisition of premises under Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947.

Order

Whereas in the opinion of the provincial Government the premises described in the Schedule below are needed/are likely to be needed for a public purpose;

Now, therefore, in exercise of the power conferred by Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act V of 1947) the Provincial Government is pleased hereby to requisition the premises described inthe Schedule below and under Sub-section (4) of the said section the Governor is further pleased to direct the First Land Acquisition Collector, Calcutta to secure possession of and control over the said premises and to take such other action as is necessary in connection with the requisitioning in accordance with the provisions of the said Act.

(On the back)The ScheduleDescription of premisesP-17 Mission Row Extension, Calcutta, Ist. 2nd and 3rd floor. By order of the Governor(Received No. 2616 Sd/- R. N. Bhattacharjee 7-6-49Dated 10th June. 1949)Assistant Secretary to the Government of West Bengal.'

It is supplemented by a further direction at the back of the actual requisition order which is to be found at page 66. As a combined effect of the two, it is clear that the claimant was prevented from making any effective use of the property, mentioned in the schedule, namely, 1st, 2nd and 3rd floors of P-17, Mission Row Extension, Calcutta, with effect from the said date, namely, 7th June, 1949. It is true that actual possession was taken after extension, from time to time, of the date of delivery of possession, on 30th August, 1949; but, it is clear also that, during the period 7th June, 1949 to 30th August. 1949, the claimant could not have made any effective use of the requisitioned property, namely, 1st, 2nd and 3rd floors of the above premises. In this view, we differ from the learned Arbitrator and hold that the claimant would be entitled to the monthly compensation for this period too, namely, from 7th June,1949 to 29th August, 1949, and the Arbitrator's award will be modified or enhanced accordingly and, to that extent, the claimant appeal F. A. No. 177 of 1957 will succeed. With regard to the other period, however, namely, from 8th September, 1950, to 1st December, 1950, we are of the opinion that the learned Arbitrator took the right view, as although the prohibitory order was not formally withdrawn until 1st December 1950, the order, derequisitioning the premises, which is at pages 68 to 69 of the above paper book. Part II. clearly indicated that the requisition was terminated and the possession of the property was redeliver-ed to the claimant. Whether, in these circumstances, the prohibitory order was formally withdrawn or not, is a matter of little consequence, and, accordingly, for this period, the claimant will not be entitled to any relief.

12. The claimant's appeal, therefore, on the above findings, will be allowed in part, namely, to the extent that he will be entitled to the monthly compensation for the requisitioned property, namely, 1st, 2nd and 3rd floors of premises No. P-17, Mission Row Extension, not only for the period 30th August, 1949 to 7th September, 1950, as determined or found by the learned Arbitrator, but also for the additional period 7th June, 1949 to 29th August, 1949, or, in other words, he will be entitled to monthly compensation from 7th June 1949 to 7th September, 1950.

(In paragraphs 13 and 14 the judgment deals with the State's Appeal. The point regarding an injunction obtained by the claimant it was held that the injunction having become infructuous, the claimant was entitled to compensation during its pendency. As respects contest regarding quantum of compensation, it was held that it was properly fixed. The judgment then continues:)

13-15. We would, accordingly, in the above view, dismiss the State's appeal, namely, F. A. No. 97 of 1957, and allow the claimant's anneal, namely, F. A. No. 177 of 1957 in part, as indicated herein before, that is, by increasing or enlarging the period of compensation from 30th August. 1949, to 7th September, 1950, to 7th June, 1949, to 7th September, 1950, and the award of the learned Arbitrator would be modified and enhanced accordingly. The claimant will also be entitled to interest on the enhanced amount from the date of the learned Arbitrator's award until payment in addition to the interest, awarded by the learned Arbitrator.

16. We further direct that the parties will bear their own costs in this Court.

17. Gupta, J.

I agree.


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