1. This is an application under Article 226 of the Constitution for an appropriate Writ for cancellation of an order of requisition dated 4-3-1952 made under the provisions of the West Bengal Premises Requisition and Control (Temporary Provisions) Act (W. B, Act 5 of 1947) and also for cancellation of a notification directing the petitioner to vacate the premises requisitioned and also for direction upon the opposite parties to forbear from giving effect to the said order of requisition and the said notification.
2. The petitioner is a resident of Garh Kamalpur in P.S. Mahisadal in the district of Midnapore. The case of the petitioner is that he became a tenant in respect of the whole of the first floor and one room on the ground floor in a two-storied building at Garh Kamalpore of which respondent 6 is the owner under a lease dated 16-2-1952 which was for a period of 5 years and at a rent of Rs. 50/- per month. There are other tenants in respect of other rooms on the ground floor of the said premises. By a notice dated 2-4-1952 the petitioner was called upon by the Collector of Midnapore, who is respondent 1, to vacate the portion of the building in his occupation on or before 16-4-1952. On receipt of the said notice the petitioner moved the Collector for withdrawal of the said notice but with no effect. Thereafter he approached the Commissioner of the Burdwan Division but he got no redress from him in spite of reminders sent to the Commissioner to take action in the matter. It is alleged that the petitioner has no place to live in other than the rooms in the said building and it is further alleged that he has a sweet-meat shop and tea-stall in the ground floor room in his occupation. It appears that the order of requisition under Section 3(1) of the West Bengal Act 5 of 1947 is dated 4-3-1952 but it was published in the Calcutta Gazette on 10-4-1952, The petitioner has set out certain facts in paras. 11 to 23 of the petition to show that the order of requisition was made mala fide. These facts have been disputed in the counter-affidavit which has been filed on behalf of the opposite parties. As this question cannot be satisfactorily determined in this application under Article 226 of the Constitution, I do not propose to express any opinion on the point.
3. It has, however, been contended by the learned Advocate appearing for the petitioner that the order of requisition, a copy of which has been set out in annexure 'D' to the petition, does 'not specify the public purpose for which the requisition is sought to be made and as such the order does not comply with the requirements of Section 3(1) of the West Bengal Act 5 of 1947 and is therefore bad. I have already held in the case of -- 'Abdul Hamid v. State of West Bengal', : AIR1953Cal223 (A), that the question as to whether a requisition is made for a particular public purpose is a justiciable issue and the Court can investigate into the question whether the purpose is in fact a public purpose. It is also clear from the language of Section 3(1) of the Act that the condition precedent to the exercise of the power under Section 3(1) if the existence of a public purpose.
4. As has been pointed out by the Chief Justice of the Bombay High Court in the case of -- 'State of Bombay v. Mohan Lal Kapur', : AIR1951Bom404 (B):
'the foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. The validity of the order must appear on the face of the order. The subject who is served with the order should be in. a position to know that the order has been validly made. If the order merely states that the property is being requisitioned for the purposes of the State or any other public purpose, it would be impossible for the subject to determine whether in fact the specific purpose for which the order of requisition was passed was a purpose of the State or any other public purpose.'
The order which is the subject matter of this proceeding does not also specify the public purpose for which the house is sought to be requisitioned. As there is no material difference between the language of Section 3(1) of the West Bengal Act 5 of 1947 and that of the Bombay Requisition Act which was the subject matter of consideration in the Bombay Case cited above, the reasons set out in the Bombay judgment are equally applicable to the order of requisition in question.
5. In my view this petition should succeed and the Rule is made absolute to the extent that the opposite parties are directed to forbear from giving effect to order of requisition made under Section 3(1) of the Act and the notification dated 2-4-1952 directing the petitioner to make over possession of the portion of the premises of which he is in occupation.
6. The petitioner is entitled to the cost ofthe present proceeding. Hearing fee is assessedat two gold mohurs.