Samarendra Nath Roy And Others v. State Of West Bengal And Others

1. Since these two Rules raise common questions, they have taken up together.

[C.R 2623 (W) of 1966.]

2. In this Rule, the petitioners seek a writ in the nature of mandamus directing the respondents to withdraw or cancel the notice dated the 17th September 1966, which is at Ann. C to the petition, isued by the B.D.O, Rajmahal, in the District of Santhal Parganas, Bihar, who is respondent No. 5. Respondent No. 4 is the State of Bihar, and respondents Nos. 6 to 9 are other officers of the State of Bihar. The petitioners' case is that they are the lessees of the Jalkar Gangapath, appertaining to the old Touzi No. 557 of the Collectorate of Malda in the Province of Bengal, under a lease granted in favour of their predecessor-in-interest Sachindra Nath Roy, by the Secretary of State for India in Council, on, 17.3.1916 a copy of which is at Ann. A to the, petition.

3. The Jalkar extends from Udai-nala (now in Bihar) to Suti (now in West Bengal). The lease granted by the Secretary of State, having been for a term of 30 years, with an option of renewal, it was renewed for a period of another 30 years with effect from the 1st April, 1946, by another deed, which is at Ann. B. This latter deed was executed by the Province of Bengal (prior to Independence), on the 8th August 1947.

4. The petitioners' case is that the lease in Ann. B is still subsisting, and that they are in possession of the entire Jalkar, on payment of the stipulated rent to the Malda Collectorate. It appears that, in view of the fact that portions of the Jalkar lie physically within the State of Bihar, on 17.9.1966, by the impugned notice, respondent No. 5 has announced that a public auction would be held by him to settle those portions of the Jalkar, which lie within the territory of Bihar. The impugned notice reads as follows:

“It is hereby notified for the information of - the general public that the two portions of the Fisheries appertain ing to Touzi 557, Gangapath, Islampur of Malda Collectorate which fall within Santhal Parganas, Bihar, will be settled for a period from 15.10.66 to 30.6.67 by public auction on 26.9.66 ………

Ramasray Rai, B.D.O

Rajmahal, Santhal Parganas”

5. The petitioners' case is that (a) the State of Bihar has not legal right to settle any portion of the Jalkar which admittedly appertains to a Touzi under the Malda Collectorate and (b) no fresh settlement can, at law be made, during the subsistence of the existing lease at Ann. B.

6. Affidavits-in-opposition have been filed by — (i) the Additional Collector, Dumka (Bihar), who is respondent 8; (ii) the State of Bihar (respondent 4); (iii) respondents 1 to 3 (State of West Bengal and its officers).

7. Though the State of West Bengal and its officers have also been added as respondents, the real respondent against whom the petitioner seeks relief is respondent No. 5,— an officer of the State of Bihar (respondent No. 4), who issued the impugned notice.

8. The affidavit filed by the State of Bihar discloses that the Jalkar in dispute lies partly within the Purnea, Bhagalpur and Santhal Parganas districts of Bihar and the Malda and Mur-shidabad districts of West Bengal.

9. The contentions of the State of Bihar are:—

(a) That this Court has no jurisdiction to issue any writ under article 226 against the respondents;

(b) That the State of Bihar is not bound by the leases alleged by the petitioner and has the title to settle the Bihar portions of the Jalkar;

(c) That in 1920, there was an executive agreement between the Revenue Boards of Bengal and of Bihar and Oris-sa in respect of the Fishery touzis 107 and 557 of the Malda Collectorate relating to the Jalkar Islampur-Gangapath which extended over the territories of W. Bengal & Bihar, henceforth Touzi No. 107 would be transferred to the management of the Province of Bihar and Orissa and that Touzi No. 557 was retained under the administration of the Province of Bihar (Ann. A to he counter-affidavit). It is further alleged that subsequently there was a repudiation of this agreement by the State of West Bengal, and that in reply to the protest made by the State of Bihar, the Board of Revenue of West Bengal wrote the letter at Ann. B to the counter-affidavit on 18.7.66, where is was stated:

“We are not, however, aware if the old Touzi 557 of Malda extended to Bihar. If it did, your Government is naturally entitled to settle the fishery within the State of Bihar.”

10. It is urged on behalf of the respondents that in view of the above statement of the Revenue authority of West Bengal, the State of Bihar is entitled to settle the disputed Jalkar in so far as it lies within the territory of Bihar.

11. A. On the question of jurisdiction, we have to refer to clause (1A) to article 226 of the Constitution, which was inserted by the Constitution (Fifteenth Amendment) Act, 1963, with effect from the 6th October 1963 i.e, prior to the date of the present petition as well as the date of the impugned order. This article, as it stands after the amendment, reads as follows:—

“226. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(1A) The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories;

(2) The power conferred on a High Court by clause (1) or clause (1A) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.”

12. It is evident from the amended article 226 that while prior to the amendment, a High Court could issue a writ under the article only if the Government, authority or person against whom the writ was sought was located or resident within the State in which the High Court has its territorial jurisdiction,— after the amendment, the High Court shall also have jurisdiction against a non-resident Government authority or person, provided the cause of action for the proceeding under article 226 arises wholly or in part within the jurisdiction of the High Court in which the proceeding is instituted.

13. We have, thus, to determine firstly, whether the cause of action for the instant proceeding may be held to have arisen even in part within the territory of West Bengal over which this Court has jurisdiction. It is contended on behalf of the respondents that the petitioners' cause of action arose in Bihar, i.e outside the jurisdiction of this Court. I am unable to accept this contention, for the following reasons:—

It is well settled that ‘cause of action’ includes every fact which it would be necessary for the plaintiff to prove, in order to support his right to the judgment of the Court (1) Read v. Brown, (1889) 22 QBD 128, and has no reference to the defence that may be set up by the defendant (2) Chand v. Partab, ILR 16 Cal. 98(102) PC. There is, therefore, no doubt that the foundation, of the plaintiff's right which is alleged to have been infringed and the circumstances constituting such infringement enter into the bundle of facts which constitute the cause of action (vide (3) Kahil v. Mahboob, AIR 1942 All 122; (4) Tarit v. Iswar, 45 CWN 932.

14. Now, in the instant case, though the impugned order has been issued by a Bihar official from his office with in the State of Bihar, the petitioners hold under a lease granted by the Province of Bengal, whose successor is the present State of West Bengal, and the petitioners are in possession and enjoyment of the fishery on payment of the stipulated rent to the Collector of Malda in West Bengal. Though the petitioners may have to en ter into the territory of Bihar to exercise their rights as a lessee of the fishery, the stream of the Jalkar is indivisible and forms a continuous stretch from Udainala (in Bihar) to Suti (in West Bengal) as alleged in the petition, which is not contradicted. The Bihar portion cannot, therefore, be physically truncated. Nor can, it be separated legally. The petitioners are residents of West Bengal and any fresh settlement of any portion of the fishery constitutes an infringement of their existing rigths under the lease held under the Collector of Malda, in West Bengal, I have, no doubt, that the facts constituting the petitioners' right to the fishery and the infringement thereof, affecting the petitioners residing in West Bengal (vide Subba Rao, J. as he then was), in (5) Lt. Col. Khajoor Singh v. Union Of India & Another, AIR 1961 SC 532(546), relate to West Bengal and, thus, the cause of action must be held to have arisen, in part, in West Bengal.

15. But even though I hold against the respondents on this point, I cannot assume jurisdiction to issue a writ un-der article 226 against the respondents for a more fundamental reason.:

It is common place to state that the remedy by way of a ‘prerogative writ’ is a remedy in personam and that such writ is enforced by issuing a writ of attachment against the person who refuses to comply with the writ, as a person guilty of contempt of court (6) Mungean v. Wheatly, (1851) 6 Ex. 88; (7) R. v. Earl Ferrers, (1758) 1 Burr. 631; (8) R. v. Poplar Borough Council (No. 2), (1922) 1 KB 95; (9) R. v. Powell, (1841) 1 QB 352(361). This is an essential feature and weakness of a prerogative writ (10) Election Commission, India v. Saka Venkata Rao , (1953) SCR 1144 (1151), which has not been questioned in any case in India under article 226. Though our Courts have held that the power under article 226 is, in some respects, wider than the power to issue a ‘Prerogative writ’ (11) Rashid Ahmad v. Municipal Board, AIR 1950 SC 163, and also that our Courts need not be oppressed by the technical and procedural deficiencies of a ‘prerogative writ’, it has, at the same time, been acknowledged that the jurisdiction under article 226 is basically the jurisdiction to issue a writ or order in the nature of a ‘Prerogative writ’, with its essential attributes (12) Basappa v. Nagappa, AIR 1954 SC 440; (13) Dwarka v. I.T.O, AIR 1966 SC 81 (84). That this inherent limitation of a ‘Prerogative writ’ extended to a writ or order under article 226 was pointed out by the Supreme Court in the earliest case on the article, prior to its amendment in 1963, (10) Election Commission, India v. Saka Venkata Rao , 1953 SCR 1144. The nature of the jurisdiction under article 226 was first explained by the Court as follows (p. 1150, ibid)—

“In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., ‘for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England.”

16. But, though the power under article 226, was thus wider than the power to issue ‘Prerogative writs’,— the Court proceeded to point out,— (p. 1150, ibid), it was subject to two limitations imposed by the article itself, namely—

“In the first place, the power is to be exercised ‘throughout the territories in relation to which it exercises jurisdiction’, that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction.

Secondly, the person or authority to whom the High Court is empowered to issue such writs must be “within those territories', which clearly implies that they must be amenable to its jurisdiction by residence or location within those territories.”

17. My conclusion, to anticipate it, is that the Amendment of 1963 has modified the second of the foregoing limitations, but has left untouched the first one, and, it should be noted, the words “High Court exercising jurisdiction in relation to the territories ……” are still there in the new clause (1A).

18. The first limitation meant, as explained at page 1151 (ibid), that since the writ was to be enforced in personam against the respondent, it could not be issued where the person or authority was not “amenable to the Jurisdiction” of the High Court before which the writ was sought for vide (15) Lt. Col. Khajoor Singh v. Union Of India & Another, (Supra). It is be cause of this limitation that though, while in England, a Prerogative writ cannot be issued by the King's Court against the King himself [(9) R. v. Powell, (1841) 1 QB 352], a writ under article 226 is available against a Government, by the express terms of clause (1) of article 226, that clause itself imposes the condition precedent that the Government against whom a writ is sought before a High Court is ‘within the territories’ in relation to which the High Court exercises jurisdiction [vide (14) Lloyds Bank v. Lloyds Bank Staff Association, (decided on 17.1.51), ILK (1954) 2 Cal. 1], the reason being that a writ issued by a High Court cannot be operative and enforced outside its jurisdiction [see also (15) Radheshyam v. Union of India, A. 1960 Bom. 353(369)-370)].

19. Now, as it was stated in the second limitation in the (10) Election Commission case, (supra), a Government, authority or person could be said to be ‘within the territories’ of a High Court, only if it or he was located or resident within those territories. It is to these tests of ‘location’ and ‘residence’ that the Amendment of 1963 has added another test, namely, cause of action arising within those territories. But the insertion of this additional test has not, as I shall show, presently, overridden or done away with the first limitation that the writ cannot run beyond the territorial limits of the High Court in question, so as to enable that High Court to punish the non-resident respondent in contempt in case of violation of the mandate of the Court.

20. In order to appreciate the scope of clause (1A) of article 226, we have to refer to the observations of the majority (per Sinha, C.J) in (5) Lt. Col. Khajoor Singh v. Union Of India & Another, (supra), where a suggestion for amending the Constitution to remove the ‘inconvenience’ of parties seeking relief against the Union of India was explicitly made.

21. The ‘inconvenience’ referred to arose in this way: The location of a ‘Government’ or other governmental authority must be physically determined by the ‘seat’ of the Government or the location of the ‘office’ of the public body. The question, arose as to what should be taken to be the location of the Government of India or other bodies created by the Gvernment of India,— and different shades of opinion were expressed by the High Courts. In, some cases it was held that the Constitution itself provided no official seat for the Union Government and that since its powers extended to the whole of the territory of India, it was deemed to be present every-where in India [vide (16) Maqbulunissa v. Union of India, AIR 1958 All 477 FB]; in some others it was held that though there was no constitutional prescription as to the capital of the Union Government, it was, in fact, located in New Delhi [see (5) Khajoor Singh's case, (supra)]. In the (10) Election Commission case, (ibid), the petition under article 226 was presented before Subba Rao, J., (as he then was) of the Madras High Court. Before his Lordship, the respondent contended that since the office of the Election Commission was situated at New Delhi, the Madras High Court had no jurisdiction to issue the writ against the Commission. Subba Rao, J. rejected this contention and issued the writ on the ground that the petitioner's cause of action arose within the State of Madras inasmuch as the Election Commission had taken up a reference by the Governor of Madras as to the alleged disqualification of the petitioner to sit as a member of the Madras Legislature. The reasoning of Subba Rao, J. [which his Lordship had an opportunity of himself elaborating as a Judge in the minority in (5) Khajoor Singh's case, AIR 1961 SC 532 (540 et seq.)] was that since the Election Commission's order would be enforced in the State of Madras and would affect the petitioner in that State, the Election Commission must be deemed to be ‘within’ the State of Madras in relation to the matter before the Court. This view of Subba Rao, J. was overruled by the Supreme Court in (10) 1953 SCR 1144(1152), with the observation that—

“The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action.”

22. Under the civil law, a Court may have a jurisdiction over a defendant not only if he is resident within the territorial jurisdiction of the Court but also where the cause of action arose, in whole or in part, within, that juridiction. While Subba Rao, J. imported the doctrine of cause of action into the jurisdiction in article 226, the Supreme Court, speaking through Patanjali Sastri, J., was unwilling to do so, because the article, as it then stood, made no mention of cause of action. By the insertion of clause (1A), the view of Subba Rao, J. appears to have been accepted by the Constitution Amendment Act, in preference to the view taken by the Supreme Court in the Election Commission case, (supra). In other words, a High Court may have jurisdiction over a respondent under article 226 not only by reason of his residence, but also where the cause of action arises, in whole or in part, within the territorial jurisdiction of that High Court.

23. To resume the history: As soon as it was laid down by the Supreme Court in the (10) Election Commission case, (supra), that it was the location of the capital or office of a Government or authority which determined its location for the purposes of article 226, the logical conclusion that followed was that the Punjab High Court was the only High Court in India before which a person aggrieved could seek a writ against the Union of India or other public bodies which were located in Delhi this obviously caused inconveneince to persons resident in different parts of the country outside Punjab and the majority of the Supreme Court, speaking through Sinha, C.J, in (5) Khajoor Singh's case, (supra), suggested that this inconvenience might be removed only by an amendment of article 226 (p. 540, ibid.)—

“It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in article 226.”

24. In the opinion of Subba Rao, J., (in the minority), however, even without such amendment, a High Court could issue a writ against the Union Government because the Union Government had a ‘functional existence’ within each State (p. 547) and when its orders operate within the territories of a High Court, that High Court should have jurisdiction against the Union Government in respect of that ‘cause of action’ (pp. 542-3).

25. But even though the concept of ‘cause of action’ has been adopted by the Amendment of 1963, notwithstanding that the Government or authority is located outside the territories of the State, I am of the opinion that the amendment has not done away with the first limitation enunciated in the Election Commission case and has not done away with the inherent limitation of the writ that it cannot be enforced against a person or authority who is not amenable to its jurisdiction,— not being phycically present within the territorial jurisdiction of the High Court, for the following reasons:

(a) In the opinion of Subba Rao, J. in Khajoor Singh's case (p. 543), the words ‘any Government’ in clause (1) (and also clause (1A) of article 226) referred to the Government of the State to which the High Court belongs as well as the Union Government, because both function within the same State (p. 543) but it has no reference to another ‘State Government’, which cannot possibly junction in a different State. If this view stands, the insertion of the expression ‘cause of action’ cannot bring in another State Government within the fold of article 226.

(b) That the functional existence theory does not do away with the first limitation laid down in the (10) Election Commission case would be evident from the following words of Subba Rao, J., at p. 546, ibid,— which had exclusive reference to the Union Government:

“The present case satisfies both the conditions: the writ does not run beyond the territorial jurisdiction of the High Court, as the Union Government must be deemed to be ‘within’ the said territories; the second condition is also satisfied, as the Union Government, being within the State, is amenable to its jurisdiction.”

26. My conclusion that the insertion of clause (1A) has not done away with the limitation that a writ under article 226 of the Constitution cannot run or be enforced beyond the territorial jurisdiction of the High Court before which it is sought would not denude the Amendment of article 226 of all meaning or render it altogether nugatory or useless, for the following reasons:

(a) So far as the Union Govern ment is concerned, the Amendment has adopted the view taken by Subba Rao, J. (while in the Madras High Court) and by some other High Courts was that since the Union Government func tions throughout the territory of India [article 245(1)], it is present in every State of the Union. Thus observed Subba Rao, J., in Khajoor Singh's case, (p. 543 ibid), reiterating his earlier view:

“The judiciary consists of an hier-arcy of courts and all the courts from the lowest to the Supreme Court exercises jurisdiction in respect of a cause of action arising in, that State. The demarcation between the Union Government and the State Government is not territorial but only subject-wise and both the Governments junction within the State.”

(b) But the reasoning that the Uni on Government must be taken as func tioning within every State cannot be extended to the different State Govern ments, because, by clause (1) of article 245, the jurisdiction of every State Le gislature and Government (article 162) is limited to its own territory and as Subba Rao, J. said — “two State Go vernments cannot administer the same State” (p. 543, ibid). Primarily, there fore, one State Government is outside the territory of another State and the High Court of the latter cannot reach it by any process in contempt, unless, of course, in fact, it has a ‘situs’ within the latter State. According to Subba, Rao, J. this may happen in some excep tional cases, e.g—

(i) Where “for convenience or as a temporary arrangement, the office of one State may be located in another State” (p. 543).

(ii) Where “the Secretariat of one of the State Governments is located in another State temporarily.”

27. Of course, even in these exceptional cases, Subba Rao, J., (p. 543) was of the opinion that the High Court of the latter State could not issue a writ under article 226 against the former State, inasmuch as the former State Government could not be said to be administering or functioning in the latter State. In my opinion, after the Amendment, the latter High Court may possibly issue a writ against the former State if the cause of action arises within its jurisdiction by reason of the former State seeking to enforce its order within the jurisdiction of the latter State, because ‘cause of action’ not ‘functioning’ is the test in clause (1A). In such a case, after the amendment, I would submit, the writ may be enforced against the local office or agency of the respondent State Government, even though the ‘seat’ of the respondent State Government is outside the jurisdiction of the issuing High Court (see in this connection, the observations in Musaliar v. Potti, (1955) 2 SCR 1196, at p. 1212; (15) Radheshyam v. Union of India, AIR 1960 Bom. 353, at p. 362, para. 29).

28. The above possibility may be illustrated with reference to the case of a non-Governmental statutory authority, which recently came up before the Supreme Court in (17) Rap Esmail Noor Mohammad v. Competent Officer, 1967 SC (WP 14|63, decided on 8.3.67). The Appellate Officer, appointed under section 13 of the Evacuee Interest (Separation) Act, 1951, has its head office in New Delhi, but it holds office in each State to dispose of appeals within that State. In such circumstances, it has been held by the Supreme Court that, after the amendment of article 226 of the Constitution, it is competent for a State High Court to issue a writ under article 226 against the Appellate Officer, in respect of appeals rlating to its own State, even though the office of the officer may be permanently located in New Delhi.

29. An individual may similarly make himself amenable to the writ jurisdiction of a High Court by his physical presence, for the time being within the territorial limits of that High Court, even though he may be a permanent resident of another State.

30. In the instant case, however, it is not alleged that either the Bihar Government or its officers have any office or agent within the territory of the State of West Bengal against whom the writ may be enforced. In this context, I may refer to the provisions of clauses (1) and (2) of article 261, which read thus:

“(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State;

(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.”

31. It is a ptiy that during sixteen year of the working of the Constitution, no law as contemplated by clause (2) of article 261 has yet been made and even though the desirability of legislation by Parliament was pointed out by Subba Rao, J., (at p. 545 of (5) AIR 1961 SC 532). If such law were enacted, pro vision might be made for the enforcement of a writ under article 226 issued by the High Court in one State against the officers of another State Government, thus avoiding the vices of separation which a radically federal system inevitably generates.

32. Of course, Subba, Rao, J., also referred to section 5 of the Contempt of Courts Act, 1952, being available against officer of the Union Government. But a glance at the summary of the conclusions of his Lordship at p. 547 will show that his Lordship was all the time thinking of the “functional existence” of the Union Government within the jurisdiction of the High Court and “if the Union Government is bound by the order of the High Court” by reason of such function, “the question of service of notice on a particular officer acting for the Government or to enforce an order against him is a matter of procedure” (p. 545, ibid).

33. But in the instant case, since the State of Bihar cannot be said to be “functioning” within the State of West Bengal and there is no representative or agent of that Government seeking to enforce the impugned order within the State of West Bengal, the question is one of substantive law and not of procedure and this Court cannot issue the writ to run outside the territories of West Bengal, even though the cause of action of the petitioners may have arisen within this State. In fact, the applicability of the Contempt of Courts Act to implement article 226 in its operation against another State has not been relied upon in any other reported decision so far. I would respectively submit that apart from anything else, anything in the Contempt of Courts Act cannot override the substantive limitations of a writ under article 226. If it is sought to be extended to other State Government either an amendment of article 226 of the Constitution or a legislation under article 261(2) would be necessary, saying that the writ would run and be respected beyond the territorial jurisdiction of the High Court concerned and laying down the mode as to how it would there be enforced.

34. B. On the merits, respondents have little to say in their favour. Petitioners have a subsisting leasehold which was absolutely valid ab initio and must be deemed to continue until duly terminated under the law. On the other hand, the property in the jalkar and the rights and liabilities under the lease granted and renewed in respect thereof, had passed on to the Province of Bengal and then to the State of West Bengal, by virtue of the operation of section 172(1)(a) of the Government of India Act, 1935 and article 294 of the Constitution. If the State of Bihar wants to agitate its title, it may institute a suit against the State of West Bengal under article 131 (c). It may also arrive at the same end by an agreement with the latter State, but the petitioners can be affected by any such agreement only if they are made parties to, it. The indiscreet statement made by the ex officio Secretary of the West Bengal Board of Revenue at Ann. B to the counter-affidavit has no effect in law to put an end to the property rights of the petitioner arising out of the subsisting lease.

35. But, as I have upheld the objection as to the jurisdiction of this Court to interfere under article 226, this Rule must be discharged. Petitioners shall not be without any remedy. They may institute a declaratory suit with consequential reliefs in the appropriate forum, if so advised.

36. The Rule is, accordingly, discharged, but without any order as to costs.

C.R 2624(W) of 1966:

37. Though the question as to jurisdiction is common, the facts of this case are different from the other one in this that in the instant case, the lease granted in favour of the Petitioner Society, expired in Chaitra, 1372 B.S, was allowed to continue up to Chaitra 1373 (corresponding to April, 1966), on the terms mentioned in the letter of the State of West Bengal at Ann. A to the petition. The petitioner states that it has deposited the rent in pursuance of these terms, but no agreement as stipulated therein had been executed by the time the petitioner came to court on 6.10.66

38. In the result, there was no subsisting lease in favour of the petitioner on the date of the petition.

39. It is, however, needless to pursue the consequences thereof because the petitoin must fail on the preliminary question of jurisdiction, for the reasons given by me in C.R 2623(W) of 1966.

40. The Rule is discharged without any order as to costs.

41. Let operation of the order in both the Rules [C.R 2623(W) and C.R 2624(W) of 1966] be stayed for four weeks from date as prayed for on behalf of the petitioner in each case.

S.K.B