Ashim Kumar Banerjee, J.:— Seventeen owners including the writ petitioner Nos. 2 to 5 owned premises No. 10, Camac Street, Calcutta-700017. They entrusted the Writ petitioner No. 1 to look after the day-to-day management and maintenance of the said building as also litigate on their behalf protecting their interest in the said premises in question. The said building was a multi-storeyed one.
2. The writ petition was filed challenging the continuance of the order of requisition in respect of first, second, third, fourth and tenth floor of the premises in question. In the present appeal we are concerned with the second and fourth floor of the said premises in question which is presently under occupation of the State.
3. The second floor is under the possession of West Bengal Pollution Control Board whereas the fourth floor is occupied by the Refugee Rehabilitation Commissioner's Department. The, State initially requisitioned the floors vide order dated September 16, 1972 under the provisions of West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 (hereinafter referred to as the said Act of 1947). Section 10 of the said Act of 1947 inter alia provides that the Government was entitled to requisition any premises for public purpose. However, once the public purpose ceased to exist, the State was obliged to release the premises from requisition. Section 10A of the said Act inter alia provides that such order of requisition would continue till the public purpose exists. The said Act of 1947 was amended by West Bengal Act 27 of 1986 wherein the maximum period of requisition was fixed at twenty-five years from the date of initial order of requisition and the Government was obliged to release the property under requisition after expiry of twenty-five years period. Under section 10B the State Government would release from requisition any property on/or before the expiry of twenty-five years from the date of such requisition provided such benefit would not be available until expiry of five years period from the date of coming into force the amending Act of 1986. The writ petitioners contended before the learned Single Judge that since the properties were requisitioned in 1972, it was incumbent upon the State to release the property from requisition on expiry of twenty five years period i.e on September, 1997. Since the State failed to deliver back possession the writ petitioners approached the learned Single Judge for appropriate relief. It further transpires on analysis of the pleadings that the appellant No. 1 addressed a letter dated July 17, 1997 on behalf of all the owners to the Land Reforms Commissioner and Principal Secretary to the Government of West Bengal inter alia asking for vacant possession of the said premises in question. The State however did not act upon such request, on the other hand issued a notice under section 4 of the Land Requisition Act, 1894 expressing their intention to acquire the properties in question. Such notification was published in Calcutta Gazette on August 12, 1997. The owners raised objection. The Land Acquisition Collector fixed September 27, 1997 for hearing of objection. The first request for vacating the premises was made on March 14, 1997 followed by reminder on July 9, 1997 and July 17, 1997. There had been series of correspondence on that score made by the appellant No. 1 on behalf of the owners. Ultimately, a detailed objection was filed on September 8, 1997 appearing at pages 134–137 of the paper book against the notification under section 4.
4. The appellant No. 1 also wrote a separate letter dated September 8, 1997. asking delivery of possession. The said letter is appearing at pages 138–141 of the paper book. The Deputy Secretary to the State issued a notice dated September 12, 1997 expressing their intention to release the property in respect of second and fourth floor appearing at pages 143–144 of the paper book. Such notice was given in terms of section 10(1) of the said Act of 1947.
5. The Land Acquisition Collector issued a notice on September 23, 1997 for hearing the objection raised by the owners. The hearing was fixed on September 26, 1997 at 1:00 p.m On September 25, 1997 the appellant No. 1 prayed for an adjournment of the hearing for two days. The contents of the said letter are as follows:
“I called on your office and explained to you that Mr. P.K Chattaraj is the constituted Attorney and he has to participate in this hearing. To this effect I have shown you a letter signed by Mr. Chattaraj from Mumbai expressing his inability as also the circumstances under which he is held up in Mumbai. In view of the above I request you to kindly adjourn the hearing for two days and any date after 29th September, 1997 may be fixed for hearing under intimation to us.”
6. It appears from the said letter that the constituted Attorney was away from Calcutta and, as such, they would not be in a position to appear at the hearing. The Land Acquisition Collector accordingly adhered to the request and adjourned the hearing till September 30, 1997.
7. On September 29, 1997 the appellant made a further request for adjournment of hearing for a month. The extract of the request is quoted below:
“This has reference to your above notice fixing up hearing on 30th September, 1997. We contacted Mr. P.K Chattaraj, constituted Attorney who is tied up with the foreign delegation and unable to participate. Besides our Advocate, who is fully conversant with this case, is out of station and shall be back only on October 28, 1997.
In view of the above circumstances we request you to fix up hearing on any date after October 28, 1997.”
8. In the said letter of request it was informed that the concerned constituted Attorney was still busy in his other office work, moreover their Advocate was out of station and would be back after a month. The second request was not adhered to. Pertinent to note, none on behalf of the appellants attended the second hearing and they remained absent by sending the letter of request referred to above. The Land Acquisition Collector rejected the objection and proceeded further. A notification under section 6 was published in Calcutta Gazette by making necessary declaration under the said provision. Such notification dated October 24, 1997 is appearing at page 149–150 of the paper book.
9. Challenging the notification under section 4 as well as declaration under section 6, the appellants along with other owners filed a writ petition being W.P No. 25632 (W) of 1997.
10. Altogether two writ petitions were heard analogously, W.P No. 22859 (W) of 1997 was filed by the writ petitioners inter alia asking for writ of mandamus compelling the State to deliver back possession of the property in question as the statutory period of twenty-five years had expired. In W.P No. 25632 (W) of 1997 the writ petitioners challenged the notification under section 4 and declaration under section 6 of the said Act of 1894. The learned Single Judge heard both the writ petitions analogously and disposed of the same vide judgment and order dated December 3, 2003 appearing at pages 249 to 274 of the paper book.
11. Analysis of the judgment and order passed by His Lordship reveals as follows:
i) Once the section 4 notification was published, the State was entitled to retain possession irrespective of the fact that the statutory period of twenty five years had expired in the meantime.
ii) Adequate opportunity was given to the writ petitioners to be present at the time of hearing on their objection. The writ petitioners did not avail such opportunity.
iii) Under the said Act of 1947 as amended in 1986 the State was entitled to hold back possession till September 15, 1997. Once the proposal for acquisition was received by the Land Acquisition Collector, steps were taken for acquiring the property in question and section 4 notification was published, there could be no scope for release of the said property in question.
iv) The public purpose was present since the floors were housed by the Government departments. Hence, the allegations to the contrary had no basis whatsoever.
v) The learned Judge directed release of rent compensation to the lawful owners after being satisfied about the ownership.
12. Being aggrieved by and dissatisfied with the judgment and order of the learned Single Judge two of the writ petitioners being the owners of second and fourth floors filed the appeal along with their constituted Attorney being the appellant No. 1.
13. Mr. Hirak Kumar Mitra, learned Senior Counsel appearing in support, of the appeal contended as follows:
i) The learned Judge could not appreciate the true purport of sections 10, 10A and 10B of the said Act of 1947 and erroneously observed that the notice proposing to release the property from requisition did not mention that public purpose ceased to exist. The learned Judge failed to appreciate that notice was issued under section 10(1) and not under section 10A or 10B.
ii) Learned Judge erred in holding that reasonable opportunity was given without appreciating the fact that one more adjournment would not in any way prejudice the Government specially when the property was under their occupation.
iii) The learned Judge erred in not dealing with the specific allegation of the writ petitioners on the question of alternative accommodation.
iv) Learned Judge also erred in dealing with the specific plea taken by the writ petitioners that the State was not entitled to the occupied space as the proportionate area and the number of employee ratio would clearly manifest misutilization of the space.
v) The learned Judge also erred in relying on extraneous fact by observing that after derequisition, the writ petitioners would be letting out the property at a higher rate.
14. While elaborating his submission Mr. Mitra relied on the following decisions:
i) Juggilal Kamlapat… v. General Fibre Dealers Ltd.…., reported in AIR 1955 Cal 354;
ii) Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others , reported in AIR 1968 SC 1413.
iii) Anisminic Limited v. Foreign Compensation, Commission, reported in 1969 (2) WLR 163.
iv) Sahu Jain Limited v. Deputy Secretary, Ministry of Finance, reported in CWN Vol. 70 1965-66 399.
15. Appearing for the State while opposing the appeal Mr. Islam, learned Counsel drew our attention to page 255 of the paper book where the learned Single Judge recorded that possession of all the floors except third and fourth floors were handed over back to the writ petitioners. Hence, there could be no challenge with regard to the second floor. Mr. Islam further contended that once the award was published and money was deposited in Court, the appellants were no more entitled to either raise any grievance with regard to the requisition or question the notice issued under section 4 or declaration under section 6 as they were at liberty to apply for enhancement of the quantum of compensation under section 18, if they felt aggrieved. Mr. Islam further contended that the State was entitled to examine and decide on the space requirement and such decision of the State was not open to judicial review. He also contended that there was no specific challenge, thrown to the acquisition proceeding in respect of fourth floor.
16. In support of his contention, Mr. Islam relied on the following decisions:
i) Somawanti v. State of Punjab, reported in AIR 1963 SC 151.
ii) Rambhai Lakhabai Bhakt v. State of Gujarat, reported in 1995 (3) SCC 752.
iii) Subhashgir Khushalgir Gosavi v. Special Land Acquisition Officer, reported in 1996 (8) SCC 282.
17. Before going into the issue involved herein let us discuss the law on the subject as decided in the precedents cited at the Bar.
18. In the case of Juggilal Kamlapat (supra), the Division Bench of this Court held that if a particular party does not appear before the arbitrator the arbitrator cannot proceed ex parte against such person without issuing a notice to the defaulting party giving a notice expressing his intention to proceed ex parte, in case he does not attend in the next hearing.
19. In the case of Somawanti (supra), the Apex Court observed the public purpose would include a purpose in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned.
20. In the case of Sahu Jain Limited (supra), learned Single Judge held that “not admitted” is no denial. Bare denial does not serve any purpose where an allegation of fact need be specifically denied.
21. In the case of Gopal Krishnaji Ketkar (supra), the Apex Court observed that even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.
22. In the case of Anisminic Limited (supra), Lord Justice Reid observed, it has sometimes been said that it is only where a Tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have to come to the conclusion that it is better not to use the term except in the narrow and original sense of the Tribunal being entitled to enter on the enquiry in question.
23. In the case of Rambhai Lakhabai Bhakt (supra), the Apex Court observed that when the petitioner had not appeared either in person or through Advocate but had chosen to file his objections through post it would be obvious he did not intend to avail the benefit of hearing while submitting objections. The Apex Court further observed that the petitioner having chosen to send the objections through post and when the notice does indicate that he was to appear either in person or through Advocate or authorised representative along with objections filed, then there would be no need to give any further date of hearing.
24. In the case of Subhashgir Khushalgir Gosavi (supra), the Apex Court observed that it is for the Government to take a decision and it is not for the Court to decide as to which place is more convenient for a bus stand. Since the Government have taken a decision that acquiring a land for extension of the bus stand and bus depot is in the public interest, it cannot be said that the exercise of the power is arbitrary.
25. In the instant case once the order of requisition was followed by an acquisition proceeding, it is immaterial whether the requisitioning authority had expressed intention to hand over possession of the premises in question back to the owners. It is true that the notices were issued by the authority in releasing the property in question as would appear from pages 143 to 144. Such notices were of no consequence, once an appropriate notification under section 4 of the said Act of 1894 was published. Lot of emphasis was put by Mr. Mitra on sections 10(1), 10A and 10B of the said Act of 1947. Even if we hold that there was a misquoting of the section that would not, per se, vitiate the acquisition process. Hence such contention of Mr. Mitra being devoid of merit, is rejected.
26. On the question of opportunity of hearing under section 5A of the said Act of 1894 we wish to observe that reasonable opportunity was given to the owners to be present on the date of consideration of their objection. The first notice was received by the owners. The owners by their letter dated September 25, 1997 prayed for two days accommodation on the personal ground of one Mr. Chattaraj who was away from Calcutta. The authority acceded to such request and adjourned the hearing till September 30, 1997 giving at least four days accommodation to the owners. On the eve of the second hearing the owners sent a letter praying for a month's adjournment, this time with a further plea that their Advocate was out of station. This was nothing but a dilatory tactic to forestall the process of acquisition. Lot of emphasis was put by Mr. Mitra by alleging undue haste. We are unable to appreciate. The statute has given a time bound mandate where a declaration under section 6 must be issued within one year from the date of publication of the notification under section 4. Here the notification was published on August 12, 1997. Hence the authority was to complete the process of declaration by August 1998. We do not find any force in such argument of Mr. Mitra and as such the same is rejected.
27. Let us now come to the third contention of Mr. Mitra to the effect that the premises was not actually required by the authority and it would be a wasteful expenditure. The appellants in their writ petition as well as in their objections tried to demonstrate that the entire area was more than sufficient to house a few of the employees of the State. They also tried to demonstrate by giving detailed calculation as to the area occupied by each employee on an average. This aspect, in our view, is completely within the domain of the Government. Government wanted to acquire the property for housing their offices. The property was already under their occupation housing various departments of the State. Hence the public purpose was proved. Once the property was intended to be acquired for public purpose, the Court is only to see that adequate compensation is given to the owners. It would be too early to make comment on the user of the property as we do not know whether after acquisition the State would better utilize the property. In our view, it is completely an executive decision which is not open to judicial review. In this regard the Apex Court decision in the case of Subhashgir Khushalgir Gosavi (supra) would support our view. The contention of Mr. Mitra on that score is thus rejected.
28. Mr. Mitra lastly contended that the learned Judge should not have relied on an extraneous fact by observing that derequisitioning would benefit the owners as they would be letting out the property at a higher rate. We find some justification in such contention. It would have been more appropriate for the learned Judge not to make such comment. However, this would not change in any way the ultimate decision.
29. The appeal fails and is, hereby dismissed.
30. There would be no order as to costs.
31. This order would, however, not preclude the appellants to challenge the quantum of compensation, if any awarded in the meantime under section 11 of the said Act of 1894, by invoking section 18 of the said Act of 1894. in case such proceeding is initiated (if not already filed) within six weeks from date, the appellants would be entitled to take the benefit of section 14 of the Limitation Act, if required, as they were bona fide pursuing their remedy in this appeal.
32. Urgent xerox certified copy would be given to the parties, if applied for.
Kalidas Mukherjee, J.: I agree.
Appeal dismissed.
B.D
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