Fatick Chand Seal vs State of West Bengal

A.N. Ray, J.—The Plaintiff filed this suit against the State of West Bengal and Prahlad Chandra De for a declaration that the lease dated December 8, 1961, is determined, delivery of vacant possession of premises No. 257B, Bepin Behari Ganguli Street, Calcutta and in the alternative, cancellation of the order dated April 8, 1963, passed by the Government of West Bengal. Further reliefs asked for are decree for Rs. 15,618 or any other sum that may be found due from the Defendant No. 1 as rent or compensation for the period from July 14, 1962 to April 8, 1963 and for a sum of Rs. 9,240 from the Defendant No. 1 as mesne profits and damages from April 9, 1963, till September 9, 1963. The Plaintiff also claims mesne profits and or damages at the rate of Rs. 60 per diem, from the Defendant No. 1 until delivery of vacant possession of the property. In the alternative, rent or compensation at the rate of Rs. 1,767 per month is claimed from the Defendant No. 1 until delivery of vacant possession.

The Plaintiff is and at all material times has been, the owner of premises No. 257B, Bepin Behari Ganguli Street, (formerly known as 257B, Bow Bazar Street) Calcutta. On or about December 8, 1961, the Plaintiff leased the second floor of the said building to the Defendant No. 2, Prahlad Chandra De, under a registered lease for a term of 21 years. The lease, inter alia, provided:

In the event of the demised premises or any part thereof being acquired or requisitioned by the Government or any Local Authority under any Act for the time being in force then this demise shall determine from the date when possession of the demised premises shall be taken by the Acquiring or Requisitioning Authority or any earlier date if so required by them and the lessee shall have no claim against the lessor, for disturbance nor shall be entitled to claim any portion of the compensation money in respect of such Acquisition or Requisition and whole of the compensation money shall belong to the lessor save and except that may be awarded to the lessee for costs of removal only.

The Defendant No. 2, Prahlad Chandra De, paid rents but defaulted in payment of municipal taxes and it is alleged that the Defendant was not in physical possession of the said premises.

The further allegation is that on or about July 14, 1962, the said premises was requisitioned under an Order and Notification under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, published in the Gazette. The Plaintiff alleges that the notice of the order of requisition and notice for delivery of possession was served on the Plaintiff''s mother, Sm. Raikishori Dassi, care of the Plaintiff at the residence of the Plaintiff at No. 9, Madan Dutta Lane, Calcutta. The Plaintiff informed the Land Acquisition Collector that the Plaintiff''s mother had no interest in the premises and that the Plaintiff was the sole owner.

On or about July 26, 1962, vacant possession of the premises was taken over by the State of West Bengal from the Plaintiff and/or from, or in the presence of, the Plaintiff''s representative.

The Plaintiff thereafter claimed compensation from the State of West Bengal. The Plaintiff alleges that on or about April 25, 1963, the Plaintiff was informed that rent or compensation at the rate of Rs. 1,767 per month had been sanctioned or agreed upon.

On or about April 8, 1963, the Defendant State of West Bengal made an order releasing the said premises from requisition and/or rescinding the said order of requisition dated July 14, 1962. The Plaintiff alleges that the lease of the Defendant Prahlad Chandra De was determined on or about July 26, 1962, on the possession of the premises being taken over by the Government and alternatively, on or about July 14, 1962, the date of requisition. The Plaintiff further alleges that it is incumbent on the State of West Bengal to specify, by order in writing, the person to whom delivery of possession of the premises shall be made, namely, to the Plaintiff in the present case and that the Defendant has not delivered possession of the premises to the Plaintiff.

The Plaintiff further alleges that after possession of the premises was taken by the State of West Bengal on or about July 26, 1962, the office of the Executive Engineer, Division I, II and III Municipal and Township Division, West Bengal Division of the State of West Bengal has been located there. The Plaintiff claims damages or mesne profits at the rate of Rs. 60 per diem from April 8, 1963.

Alternatively, the Plaintiff states and submits that the order dated April 8, 1963, is invalid, illegal and without jurisdiction and that there is no power to rescind an order of requisition and that there has been no due and proper release from requisition. The Plaintiff claims rent and compensation at the rate of Rs. 1,767 per month from July 14, 1962.

In para. 13 of the plaint the Plaintiff claims compensation or mesne profits from April 9, 1963 till September 9, 1963, at the rate of Rs. 1,767 per month, a further sum of Rs. 9,240 as damages or mesne profits from April 9, 1963 till September 9, 1963, at the rate of Rs. 60 per day, or in the alternative, Rs. 8,835 as rent or compensation at the rate of Rs. 1,767 per month from April 9, 1963 till September 9, 1963.

The State of West Bengal filed a written statement and stated that when the order of requisition was made, the premises was lying vacant and possession was taken from the Defendant No. 2 being the lessee in occupation therein. The Defendant State further alleges that after possession of the premises was taken from the Defendant No. 2 and made over to the West Bengal Development Corporation, a letter was received from the Plaintiff that his mother had no interest in the property. The Defendant State denies that rent or compensation at the rate of Rs. 1,767 had been sanctioned or agreed. The Defendant State denies that the order dated April. 8, 1963, was an order releasing the premises from requisition and that the Plaintiff is entitled to claim rent or compensation from July 6, 1962 (sic) to April 8, 1963. The further allegation of the State is that under the order dated April 8, 1963, the order of requisition dated July 26, 1962, stands withdrawn and the State denies that the said order is an order of release from requisition or that it is incumbent on the Defendant to specify, in writing, that delivery of possession be made to the Plaintiff and/or to deliver possession of the premises to the Plaintiff. The State of West Bengal denies the other allegations in the plaint.

The Defendant Prahlad Chandra De filed a written statement. The said Defendant alleges to be a lessee under the Plaintiff, in respect of the second floor of the premises for a period of 21 years at a rent of Rs. 800 per month. The said Defendant further alleges that the West Bengal Development Corporation of the Government of West Bengal approached the said Defendant for a tenancy of the premises at a rent to be fixed by mutual agreement but not exceeding the amount assessed by the Government authorities. The said Defendant further alleges that while works were being carried out a purported order dated July 14, 1962, for the requisition of the premises was passed under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1927. The said Defendant further alleges that the purported order has since been rescind and/or cancelled and in the premises, there was no valid order for the requisition, in fact or in law, of the demised premises. The said Defendant denies that possession was taken from the Plaintiff or from the Plaintiff''s representative. The Plaintiff''s claim for compensation is denied. The other allegations in the plaint are also denied.

The following issues were framed at the trial:

(Issues framed on behalf of Defendant No. 2).

(1). Was the lease dated December 8, 1961, in favour of the "Defendant No. 2, determined as alleged in para. 9 of the plaint?

(2a). Was there any valid and effective order of Requisition of the premises in question under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, in the facts and circumstances of the case?

(2b). Is the said Act ultra vires the provisions of Section 299 of the Government of India Act, 1935 and of the Constitution of India as alleged in para. 14A of the written statement of the Defendant No. 2?

(Issues framed on behalf of Defendant No. 1)

(3). Did the Plaintiff give possession to the Defendant No. 1 as alleged in para. 6 of the plaint?

(4). Is the Plaintiff the only person entitled to possession of the premises as alleged in para. 9 of the plaint?

(5a). Is the Government in possession since July 14, 1962?

(5b). If so, is the possession of the Government wrong?

(6). Did the Government make over possession to the West Bengal Development Corporation on July 26, 1962 and since then has the said Corporation been in possession under arrangement or agreement with the Defendant No. 2 as alleged in para. 10 of the written statement?

(7). Is the order of rescission dated April 8, 1963, invalid and wrongful?

(8). Was the compensation agreed upon and fixed at Rs. 1,757 as alleged in para. 7 of the plaint?

(9). Is the Plaintiff entitled to Rs. 15,618 as compensation from July 14, 1962 to April 8, 1962, as claimed in para. 13(a) of the plaint?

(10). Is the Plaintiff entitled to compensation or damage from the period April 9, 1963, to September 9, 1963, as alleged in para. 13 of the plaint?

(11). Is the notice u/s 80 valid and sufficient?

(12). Is the suit maintainable?

(13). Has the Plaintiff any cause of action against the Defendant No. 1?

(14). Is the suit bad for non-joinder of the West Bengal Development Corporation?

(15). To what relief, if any, is the Plaintiff entitled?

On behalf of the Plaintiff there is the oral evidence of Fatick Chand Seal and Probodh Chandra Bhattacharya. On behalf of the Defendant there is the oral evidence of Mukti Sadhan Chakravarti. The Plaintiff''s witness, Probodh Chandra Bhattacharya, is an engineer. The witness on behalf of the State is a surveyor in the office of the Land Acquisition Collector.

The important questions in the suit are comprised in the issues framed on behalf of the Defendant No. 2, namely, whether there was a valid and effective order of requisition and whether the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, is ultra vires the provisions of Section 299 of the Government of India Act, 1935 and of the Constitution of India as alleged in para. 14A of the written statement of the Defendant No. 2. It should be stated here that para. 14A of the written statement was introduced by way of amendment. The allegations in para. 14A of the written statement are that the Act is illegal on, inter alia, the following grounds. First, that Section 3(1) of the Act of 1947 purports to authorise Provincial or the State Government to requisition any premises in any locality whenever it appears to such Government that such premises are needed or are likely to be needed for any public purpose and purports to make the subjective satisfaction of the Government as to the existence of the public purpose final and thereby contravenes the provisions of Section 299(2) of the Government of India Act, 1935, which authorises acquisition (which includes requisition) of any property'' for public purpose only. Secondly, that the Act of 1947 was beyond the legislative competence of the West Bengal Legislature being in excess of the powers of the Legislature as conferred by Section 299(2) of the Government of India Act, 1935, inasmuch as it purports to authorise the appropriate Government to acquire or requisition property for a purpose other than a public purpose. Thirdly, that the Act of 1947 imposed restrictions which restrictions are neither reasonable nor in the interest of the general public on the fundamental right of a citizen including the Defendant No. 2 to acquire, hold and dispose of property. The other amendment in para. 14A of the written statement of the Defendant No. 2 is that pretended requisition being invalid and of no effect, the lease has not been determined and is still subsisting.

The West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, being West Bengal Act V of 1947, received assent on June 1, 1948 and thereafter, the Act has been amended from time to time. Counsel for the Defendant No. 2 submitted that the validity of the Act had to be decided with reference to the Government of India Act, 1935. Section 3 of the said Act of 1947 consists of six sub-sections. Sub-section (1) is as follows:

Whenever it appears to the State 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 (either with or without any or all of the furniture, if any, in such premises):

Provided that no premises exclusively used for the purpose of religious worship shall be requisitioned under this section.

Sub-section (2) speaks of service of the order of requisition on the landlord and tenant as the case may be Sub-section (4) states that an order passed under Sub-section (1) shall be final and whenever such order has been passed the State Government shall direct the Collector to take such further action as is necessary in connection with the requisitioning of the premises in accordance with the provisions of the Act.

Counsel for the Defendant No. 2 contended first, that the provisions contained in Section 3 and in particular, Sub-section (1), read with Sub-section (4) indicated that the order was final and in view of the fact that the text of Section 3 of the Act of 1947 stated that whenever it appears to the State that any premises are needed or likely to be needed for any public purpose, it might, by order in writing requisition. It is said that authority was given to the State to requisition the premises and the text of the Act showed a distinction between it appearing to the State Government that any premises were needed for any public purpose and any premises being in fact required for public purpose. In other words, the contention on behalf of the Defendant No. 2 is that requisition need not be for a public purpose in fact but if it appears to the Government that premises are likely to be needed such subjective satisfaction is enough though there be no factual necessity of the premises being required for public purpose. It is, therefore, said by counsel for Defendant No. 2 that Section 3 offends Section 299 of the 1935 Government of India Act for two principal reasons. First, it is implicit that acquisition must be for public purpose and the language in Section 3 of the Act, 1947, namely that "if it appears etc. to the State that premises are needed Or likely to be needed for public purpose," means that it need not be for public purpose and therefore, the law is bad and it was beyond the power of the Provincial Legislature to pass this law. The second contention is that acquisition is used in a broad sense to include requisition.

Counsel for the Defendant. No. 2 relied on the decision of the Supreme Court in Province of Bombay Vs. Kusaldas S. Advani and Others, on the observations appearing at pages 678, 679 and 681 of the Report containing the dissenting judgment of Mukherjea, J. It Jappears that the question for determination in Advani''s case was whether the order of requisition was quasi-judicial order which could be quashed by a writ of certiorari. The majority opinion was in the negative. In Advani''s case the provisions of Bombay Land Requisition Ordinance, 1947 and in particular, Section 3 thereof, came up for consideration. Section 3 of the Bombay Land Requisition Ordinance, 1947, is as follows:

If in the opinion of the Provincial Government it is necessary or expedient to do so the Provincial Government may, by order in writing, requisition any land for any public purpose : Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.

Mukherjea, J. said that the language of the section, taken along with the proviso, indicated that whereas the act of requisitioning any land was left to the executive discretion of the Provincial Government and the latter could requisition land whenever it was considered necessary or expedient to do so, certain conditions had been laid down which were conditions precedent to the exercise of the power. The first condition imposed by the proviso which was in the nature of an exception engrafted upon the entire section prevented the Provincial Government from exercising powers at all if the land was used for public religious worship. In that context it was observed by the Supreme Court that the existence of a public purpose as an objective fact and not as subjective opinion of the Government, had been made the essential preliminary, to found the jurisdiction of the Government to proceed with any act of requisition. It is also said in that decision that public purpose is an independent fact, the existence of which would enable executive to move in the matter of requisition of property, but it was itself not dependent on the personal opinion of the executive. At p. 681 of the Report there is an observation of Mukherjea, J., to this effect:

It may be pertinent to point out in this connection that a similar provision in Section 3(1) of The West Bengal Premises Requisition and Control Act has been expressed in a different language and the actual existence of public purpose has not been made a condition precedent to the exercise of power by the Provincial Government.

Counsel for the Defendant No. 2 relied on those observations in Advani''s case and contended the language of the Bombay Act was that if in the opinion of the Provincial Government it was necessary or expedient to do so, the Provincial Government might, by order in writing, requisition. It is said with regard to the Bombay Act that when there was a public purpose, the only discretion was whether the Government would requisition the premises or not. The Bengal Act is said by counsel for the Defendant No. 2 according to the text to authorise a requisition on the mere satisfaction of the Government that a public purpose exists and the existence of a public purpose has not been made a condition precedent to the exercise of the power under the Bengal'' Act. Therefore, counsel for the Defendant No. 2 contends that the power conferred is bad because the power is contrary to Section 299(2) of 1935-Act which guarantees that no law can authorise acquisition for a purpose other than public purpose.

In aid of the contention indicated above, counsel for the Defendant No. 2 also relied on the decision in Province of Bombay v. The Board of Trustees for the Improvement of Calcutta (1946) 50 C.W.N. 825 , 827. In the Improvement Trust case certain premises were requisitioned under Rule 75A of the Rules framed under the Defence of India Act. The contentions advanced in that case were that Section 19 of the Defence of India Act was to be construed in the light of Section 299 of the Government of India Act, namely, that there can be acquisition only under authority of law and there is to be compensation.

Counsel for the Defendant No. 2 relied on the recent Bench decision in Chayarani Mukherjee Vs. Assistant Secretary to the Government of W. Bengal, Land and Land Revenue Dept. Requisition Branch and Others, , in support of contention that acquisition included requisition.

The other contentions on behalf of the Defendant No. 2 are that if the executive act is justiciable that would not render the legislation, intra vires, if the Act offended Section 299 of the Government of India Act. In support of that contention reliance was placed on the decision of the Supreme Court in the The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, and on the observations of Patanjali Sastri, C.J., at pp. 901, 906, on the observations of Mahajan, J. at pp. 934, 937, 947, on the observations of Mukherjea, J. at p. 957, on the observations of Das, J. at pp. 988, 989 and on the observations of Aiyar, J. at p. 1013. Patanjali Sastri, C.J. said that the law with respect to acquisition of property should authorise requisition only for a public purpose and that such law should provide for compensation. At p. 937 of the Report, Mahajan, J. made similar observations. At p. 957 of the Report, Mukherjea, J. also said that the requirement of a public purpose is implicit in compulsory acquisition of the property by the State or what is called the exercise of its power by eminent domain. Das, J. said that the requirement of a public purpose as an essential prerequisite to compulsory acquisition is essentially a provision of that clause and an integral part of it. Das, J. further said that there are three limitations imposed upon the power of the State : first, the taking of possession or acquisition must be for a public purpose, secondly that such taking of possession or acquisition must be under a law authorising such taking of possession and thirdly that the law must provide for compensation. Aiyar, J. also observed that the acquisition of the property can only have a public purpose.

Counsel for the Defendant No. 2 also relied on the decision of the Supreme Court in Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, in support of the contention that no person could be deprived of a property by the executive without legislative sanction and that even the legislature cannot deprive a person of his property unless there is public purpose and then only on payment of compensation.

In the decision in Tan Bug Taim Vs. Collector of Bombay, the vires of the Bombay Act came up for consideration.

Bhagawati, J. held that the expression "acquisition" did not include "requisition". That view of Bhagawati, J. received statutory recognition because by notification No. 311/47-C and G dated October 25, 1947, u/s 104 of the Government of India Act, 1935, the Governor-General empowered all Provincial Legislatures to enact laws with respect to the requisition of land treating it as a matter not enumerated in any of the lists of the 7th Schedule of the said Act. That put the question of legislative competence beyond any controversy. In that view of the matter there is legislative competence to deal with requisition as well as acquisition.

The question is whether the Statute challenged in the present case provides that there may be requisition or acquisition for a public purpose and whether the Statute provides for compensation. The contention on behalf of the Defendant No. 2 is that requisition need not be for a public purpose in fact and if it appears to the Government that the premises are required for public purpose, that subjective satisfaction confers authority on the State to requisition premises for any purpose which appears to the Government and therefore, being armed with that authority, any requisition made by the Government is not for public purpose but for a purpose which appears to the State Government to be so. In Chayarani''s case Supra the vires of West Bengal Premises Requisition and Control (Temporary) Provisions Act, 1947, came up for consideration. The questions which arose in that case were first whether the factual existence of a public purpose for a requisition was justiciable and secondly whether the order of requisition was started by a public purpose. Counsel for the Defendant No. 2 distinguished Chayarani''s case by submitting that the vires of Section 3(1) of the Act on the textual interpretation of it did not come up for consideration in the Bench decision. The opinion of the Government as to the existence of a public purpose was held to be final and not justiciable in A.C. Mohamed and Another Vs. Sailendra Nath Mitra, . In Chayarani''s case it was held that on the authorities it must be held that on a purely textual interpretation of the section and in absence of a constitutional guarantee that the property could not be requisitioned save for a public purpose, the subjective satisfaction of the Government as to the existence of a public purpose would be final. At p. 833 of the report (68 C.W.N.) it is held that in the light of the constitutional guarantee embodied in Article 31(2) of the Constitution, the existence of a public purpose is justiciable and the opinion of the Government is not final. At p. 834 of the report (68 C.W.N.) there is an observation as follows:

We think the word acquisition in Section 299(2) of the Government of India Act, 1935 includes the requisition of land for the use and occupation of the Government.

The meaning of requisition came up for consideration before the Supreme Court in the case of Guru Datta Sharma Vs. State of Bihar, . A suit was filed against the State of Bihar, challenging the validity of the Bihar Private Forests Act of 1946. The Bihar Act was impeached as violative of Section 299(2) of the Government of India Act, 1935. The deprivation of the landholder of the right of management and control over the forest without his legal title thereto or beneficial management thereof being affected was held not to amount to acquisition of land within Section 299(2) of the Government of India Act. Property as a legal concept is stated to be the sum of a bundle of rights and in case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain and the right to alienate and so on. These rights, of course, would be subject to relevant law but it is said in the Supreme Court decision that strands that make up total are not individually to be identified as those constituted in the property. The imposition of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income was held not to be an acquisition of the property within the meaning of Section 299 of the Government of India Act. At p. 322 of the Supreme Court Report and p. 1697 of AIR it is stated that the contention that the right to possession, management and control over the estate was a right in or over such property and that if it was so construed the taking over of such a right would be tantamount to acquisition of land within Section 299(2) was repelled by holding that the rights referred to in Section 288 were derivative rights like interests carved by an owner--a lessee and mortgagee and not an incident of a property right. In Guru Datta Sharma Vs. State of Bihar, the Supreme Court said that the word acquisition occurring in Section 299 of the Government of India Act had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by the Supreme Court in The State of West Bengal Vs. Subodh Gopal Bose and Others, , to that word acquisition occurring in Article 31(2) in the light of other provisions of the Constitution. Guru Datta''s case shows that acquisition; has a limited meaning.

It, therefore, appears that the only two tests are whether the law is for public purpose and whether the law provides for compensation. Section 3(1) of the West Bengal Act of 1947 is that whenever it appears to the State 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. The word "appears" is construed by counsel for the Defendant No. 2 as subjective satisfaction of the executive and that the legislation authorises the executive to requisition and it need not be for public purpose, The fallacy of the contention on behalf of the Defendant No. 2 is, in my opinion, that the argument overlooks that the text of the Statute is "if the premises are needed or are likely to be needed for any public purpose then the State Government may by order requisition," and therefore, it is implicit as well as explicit in the statute itself that the requisition is for a public purpose. The application of the Act to any purpose other than public purpose does not touch or affect the vires of the Act. As long as the law is for public purpose its application for any other purpose will not make the law bad. In Chayarani''s case Supra it is stated at p. 841 of the report that compulsory requisitioning of land is confiscatory in character and in substance is a measure of compulsory acquisition and judged by that test, West Bengal Act V of 1947 is a law authorising compulsory acquisition of land and is subject to the Constitutional guarantee embodied in Section 299(2) of the Government of India Act, 1935. Section 3 of the Act is construed in Chayarani''s case to mean--public purpose and the opinion of the Government as to the need for requisitioning the premises is final but the factual existence of the public purpose is justiciable and the opinion of the Government in that behalf is not final. The purpose of an enactment, namely, that it is for public purpose and the opinion of the Government that the premises are required for the public purpose are two different concepts. The opinion of the Government is not immutable but is justiciable. The Statute on the other hand is immutable that premises can be requisitioned only for public purpose.

The Bombay Act was challenged three times as will appear from The State of Bombay Vs. Bhanji Munji and Another, and The State of Bombay Vs. R.S. Nanji, and the The State of Bombay Vs. Ali Gulshan, . In Bhanji Moolji''s case it will appear that reference was made to the observation of Mahajan, J. in State of Bihar v. Kameswar Singh Supra at p. 940 that it is unnecessary to state in express terms in the Statute itself the precise purpose for which the property is taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the community at large. In the State of The State of Bombay Vs. R.S. Nanji, , the Bombay Act again came up for consideration. The relevant observations will appear at pp. 24, 25, 26 and 27 of the report( The State of Bombay Vs. R.S. Nanji, ) where it is stated that the provisions of the Act, read as a whole, would lead to the conclusion that if the premises specified in the impugned order had been requisitioned for the Corporation, the requisition would have been for a public purpose. It is also said there that prima facie the Government is the best Judge as to whether public purpose is served by issuing a requisition, but it is not the sole judge and the Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether the requisition is or is not for a public purpose. The expression "public purpose" cannot be defined and the Courts have jurisdiction to determine whether a requisition order is for public purpose or not. I am, therefore, of opinion that the West Bengal Act of 1947 is not violative of the provisions contained in Section 299 of the Government of India Act, for the Statute authorises requisition only for public purpose.

The next question is as to the effect of the order of rescission. The order dated July 17, 1962 is as follows:

Government of West Bengal Land and Land Revenue Department Requisition Branch No. 59/62 Reqn.

Calcutta, the 17th July, 1962.

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 State Government the premises described in the schedule below are 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 Governor is pleased hereby to requisition the premises described in the schedule below under Sub-section (4) of the said section, the Governor is further pleased to direct the First Land Acquisition Collector, Calcutta, to take such further action as is necessary in connection with such requisitioning of the premises in accordance with the provisions of the said Act and to take possession of the premises so requisitioned.

The Schedule Description of the premises 257B, Bepin Behary Ganguly Street, Calcutta (The entire 2nd floor)

By order of the Governor Sd. P. Dutta, Secretary to the Govt, of West Bengal

It appears on the evidence that possession was taken by the Land Acquisition Collector on July 26, 1962 and that possession was made over to West Bengal Development Corporation on April 8, 1963. The Government thereafter passed an order as follows:

Government of West Bengal Land and Land Revenue Department Requisition Branch. No. 59/62

Calcutta the 8 April, 1963

ORDER

In exercise of the powers conferred by Sub-section (1) and (4) of Section3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act V of 1947), the State Government is pleased to rescind the order No. 59/62 Reqn. dated 14. 7. 62 made by it in respect of the premises described in the schedule below:

The Schedule Description of premises 257B, Bepin Behary Ganguly Street, Calcutta (The entire 2nd floor)

By order of the Governor Sd. P. Dutta 8.4.63 Deputy Secretary to the Government of West Bengal

Counsel for the Defendant first contended that the word "rescinded" would mean that the order of requisition dated July 17, 1962, was wiped out, abrogated, annulled, revoked or cancelled. These meanings were extracted as the meaning of the word "rescind" appearing in the Oxford Dictionary. Secondly, it was contended that in Section 22 of the General Clauses Act, 1899, there is express power to add to, amend, vary or rescind any order and therefore, the Government would have the power to rescind. Reliance was placed on the statement of Law in Halsbury''s Laws of England, Third Ed. vol. 26, p. 874, para. 1624 that annulment or rescission would relate back to the date of the contract and in the present case the annulment, therefore, would relate back to the date of requisition. In support of that contention reliance was placed on footnote V at p. 874, para. 1924 and the decision in Abram S.S. Company v. Westville Shipping Company (1923) A.C. 773. Reliance was also placed by counsel for the Defendant No. 2 on the decision in Thorpe v. Fasey (1949) 1 Ch. D. 649 and on the observations appearing at pp. 662, 663 that where a contract is to be rescinded at all, it must be rescinded in toto and the parties put in status quo and ''therefore, Defendant No. 2 should be put in the same position of the lessee that he was on the date of requisition.

Reliance was also placed on the decision in Newbigging v. Adam 34 Ch. D. 649, on the observations to the effect that complete rescission would not be effected unless the misrepresenting party not only hands back the benefits which he himself received but also re-assumes the burden which under the contract the injured person has taken upon himself.

The object of an action for rescission is to obtain the cancellation of the contract and to petition for such directions as may be necessary in the circumstances for the restoration of both parties to the position that they occupied prior to the contract. The position has been judicially epitomized by saying that there ought to be a giving back and a taking back on both sides. See Newbigging v. Adam Supra and Redgrave v. Hurd (1881) 20 Ch. D. 1. The Defendant must restore the advantages that he has obtained by the contract. These advantages are of two kinds: first, benefits actually received; secondly, burdens assumed by the Plaintiff. Thus the property delivered to the Defendant, whether in the form of money, shares, lands, must be restored to the Plaintiff who on his side must make similar restitution of anything received by him. Again, the result of the contract may have been assumption of certain obligations by the Plaintiff which, had it not been for the transaction, would have rested upon the Defendant. These must also be taken back, for otherwise the aim of rescission proceedings status quo ante, would not be attained.

The right to rescind a contract, whether for fraud or misrepresentation, is subject to three important restrictions. First, if substantial restoration of benefits is not possible the contract cannot be rescinded at all. Secondly, the right to rescind a contract involves the exercise of a choice between affirming it and bringing it to an end. A person entitled to rescind a contract must make this choice and he cannot equivocate without danger of losing his right of rescission. Thus if he leads the other party to think that he prefers to carry on with the contract, subject to any claim for damages which he may have, he cannot afterwards turn, round and insist on rescission. Thirdly, a contract cannot generally be rescinded to the prejudice of innocent third parties.

It is manifest that the principle of rescission in contracts postulates that as a result of the rescission the parties are brought back to status quo ante. In the present case the facts are that there was an order or requisition and thereafter pursuant to the order of possession was taken. That fact of requisition and fact of possession being taken cannot be and has not been annulled in fact. Secondly, the lease contemplates that on requisition there is a determination. That determination takes place on the requisition. In the present case there is requisition order on July 17, 1962. Immediately and simultaneously with the order of requisition there is determination of the lease. What counsel for the Defendant No. 2 contended was now that the requisition was rescinded the effect of it today would be that there was no requisition. That would be robbing the order of requisition of its existence in fact as also of possession being taken pursuant to the order of requisition. To my mind it appears that requisition is not a contract and therefore, the principle of rescission which applies to contracts does not apply at all to cases of requisition. In order to rescind a contract the two parties agree in that behalf. That is not so in the present case. In the present case the Government made an order of requisition. Thereafter possession was taken. Subsequent thereto the order of requisition is rescinded. The effect of that order is release of the property as I shall presently indicate.

I am also unable to accept the contention that the order of rescission would have retrospective effect because first, the Statute does not allow such retrospective effect and secondly, the order itself does not contain any intrinsic evidence to that effect and thirdly, cancellation or rescission of the order speaks from the date of cancellation or rescission. Counsel for the State contended that the provisions of the General Clauses Act were not applicable in the present case and reliance was placed on the decision of Supreme Court in The State of Bihar Vs. D.N. Ganguly and Others, . The question for consideration in that case was whether there was any power to supersede any reference made under the Industrial Dispute Act, 1947. It was held that the Act did not confer any power on the Government to cancel or supersede a reference made under the Act. Such power, it was held, could not be claimed by implication on the strength of General Clauses Act, because the rule of construction enunciated in Section 22 of the General Clauses Act, in so far as it refers to the power of rescinding or cancelling the original order, cannot be invoked in respect of the provisions of Section 10(1) of the Industrial Disputes Act. Counsel for the Defendant No. 2 distinguished this decision by contending that the Government in the present case was making an order of requisition and it could not stand outside as in adjudication proceedings and secondly that in the Supreme Court case there was intention in the provisions of the Act to make the applicability of General Clauses Act inconsistent whereas there could not be such an intention in the present case. The provisions of the West Bengal Act, 1947, show that u/s 3, there is power to requisition premises. Section 4 speaks of power to order vacation of premises and for execution of repairs. Section 10 speaks of release of premises from acquisition. Section 20 speaks of penalty to the effect that whoever contravenes any provision of the Act or fails or neglects to obey any order shall be punishable-. In the present case, the order of requisition shows that immediately there is an order, certain restrictions are put upon the owner and/or the occupier of the premises Section 20 of the West Bengal Act shows that if there be any violation there can be punishment. Provisions contained in Sections 11 to 14 of the West Bengal Act show that when premises are requisitioned, compensation is payable. In the present case, compensation has been claimed and compensation has become payable by reason of the order of requisition. That feature cannot be wiped out. Neither the requisition nor the payment of compensation by reason of the order of requisition can be said to have been extinguished. It is because of requisition that there is compensation. Further, implications of the power to rescind by reference to General Clauses Act would show that the provisions contained in Section 10 of the West Bengal Act which relate to release of properties are in fact affected. Counsel for the Defendant No. 2 also stated that in effect an order of requisition meant a release of premises. His contention was that in view of the fact that already there is a release the equitable relief from forfeiture could be granted as on the date of the trial. But that is, in my opinion, depriving the Plaintiff of the rights to which he has already become entitled under the terms of the lease and no such equity can arise here. The Supreme Court said in the State of Bihar case Supra that the General Clauses Act did not apply to Industrial Disputes Act and an order passed under Industrial Disputes Act could neither be rescinded nor cancelled under the provisions of the General Clauses Act. I am of opinion that the provisions of the West Bengal Act which deal with requisition and release of properties repel application of the General Clauses Act because the West Bengal Act is self-contained and the application of Section 22 of the General Clauses Act is inconsistent with the provisions and structure of the West Bengal Act.

Counsel for the Plaintiff relied on the decision of the Supreme Court in Strawboard Manufacturing Co. Ltd. Vs. Gutta Mill Workers'' Union, in support of the contention that the order of rescission in the present case could not have any retrospective operation. It could not wipe out the requisition order and speak with effect from the date of requisition. In the Strawboard case an industrial dispute was referred to the Labour Commissioner with a direction that the award should be submitted not later than April 5, 1950. The award was made on April 13 and on April 26. The Governor issued a notification extending the time upto April 30 for making the award. It was held that in view of the language of Section 6 of the U.P. Industrial Disputes Act and in the absence of a provision like that contained in the proviso to Rule 16 of the Governor''s notification dated March 15, 1951, the State Government had no authority to extend the time and the adjudicator became functus officio on the expiry of the time fixed in the original order of reference and the award was made without jurisdiction and was a nullity. It was also held that Section 14 of the U.P. General Clauses Act did not in terms or by necessary implication give any power of extension. Finally it was held that order of amendment and modification conferred on the State by Section 21 of the U.P. General Clauses Act did not have any retrospective effect. At p. 447 of the Report the effect of Section 21 of the U.P. General Clauses Act, 1904, is considered in regard to the contention that the order in the Strawboard case Supra should be read as amendment or modification of the first order. It was held by the Supreme Court that if the amending order operated prospectively, i.e., only as from the date of the order, it could not validate the order which came to be made after expiry of the time specified in the original order and before the date of the amending order. It was also held that in view of the absence of any distinct provision in Section 21 that the order of amendment and modification might be so exercised as to have retrospective operation, the order could be viewed only as an order of amendment or modification. It is a rule of consideration of statute that retrospective operation is not to be presumed or to be assumed as an implicit term in any statute. Retrospective effect can be given only by express enactment and not otherwise. I am, therefore, of opinion that the order of rescission could not have any retrospective effect. Counsel for the Defendant No. 2 distinguished the decision in Strawboard case Supra by contending that that was not an order of rescission but was an amendment of an executive order. I do not see any reason as to why an order of rescission can have any retrospective operation under the General Clauses Act. Another contention-was also advanced, to distinguish the decision in Strawboard case Supra by submitting that the Government made an order after the expiry of time to make an award and the question was whether the Government can validate an award made beyond time. The decision in Strawboard case Supra is an authority for the proposition that any order attempted to be upheld u/s 21 of the General Clauses Act whether as an order of modification or amendment will operate prospectively and not retrospectively.

Counsel for the Plaintiff relied on the Full Bench decision in Venkatesh Yeshwant Deshpande v. Emperor AIR 1938 Nag. 513, where the words used in Statute were held to be interpreted according to their context and Section 21 of the General Clauses Act was read in the light of Sections 14 to 20 which preceded and Sections 20 to 22 which followed and those considerations made it clear that the word "order" used in Section 21 of the General Clauses Act meant a legislative order or statutory order, that is an order having the force of law. In Deshpande''s case AIR 1938 Nag. 513, there was an application for order that Deshpande be set at liberty on June 14, 1937, His application was dismissed and he surrendered to his bail on June 27, 1937, on which date he was recommitted to jail. He made some applications to the local Government u/s 401 and he succeeded in getting remission of one year by an order of the local Government passed on February 24, 1937. On March 24, 1938, the Government announced a general remission of 2 months respecting all the prisoners throughout Central Provinces and Berar in commemoration of the introduction of jail reforms. The order of remission on February 24, 1938, was communicated to the Applicant in usual course. The question for consideration in the Nagpur case was as to the effect of the order of February 24, 1938. It was held that the power to issue orders is the power enacted in Section 14 of the Act. The word "order" in Section 21 was held by the Full Bench decision of the Nagpur High Court to have been used with reference to notifications, rules and bye-laws as comprised in the expression "Indian Law" defined in Section 27(a) of the General Clauses Act and therefore a fortiori order meant legislative or statutory order. Counsel for the Defendant No. 2 distinguished the Nagpur decision by contending that the order of sentence was put an end to and the order itself was worked out. In my opinion that is no distinguishing feature of the Nagpur case. The text of Section 21 of the General Clauses Act as has been read by the Full Bench decision of the Nagpur case refers to legislative or statutory order. This is an additional reason as to why General Clauses Act cannot be brought in aid of the Defendant No. 2 to contend that the order of rescission is supportable with reference to Section 21 of the General Clauses Act.

Finally it was contended on behalf of Defendant No. 2 that rescission under the Indian Contract Act would mean restoration of the original position irrespective of any intervening circumstances and it was contended that there has been no change of position because the Defendant was in possession and therefore there could be rescission. I have already indicated that the principle of restitution does not apply to Government order of requisition because it is not a contract. Further, where restitution is made, the contract is not wiped out of existence. It is because there has been a contract that restitution is spoken of and resorted to. A fortiori because there is the order of requisition therefore arises the question of rescission. It follows that rescission has been made in the present case because there is that order of requisition which is no longer to be given effect to. Further, the order of requisition has been acted upon and the Government pursuant to that order took possession and became liable to pay compensation. The contention on behalf of the Plaintiff is correct that the Plaintiff''s rights to determine the lease in the event of requisition sprung into existence immediately there was the order of requisition and it could not be in fact in the present case wiped out. I am, therefore, of opinion that the contentions advanced on behalf of the Defendant No. 2 are unacceptable.

Of the several issues framed on behalf of Defendant No. 1, one of the questions is whether the Plaintiff gave possession to the Defendant No. 1, as alleged in para. 6 of the plaint and the other issues are, whether the Plaintiff is the only person entitled to possession and whether the Government is in possession since July 14, 1962 and whether the Government made over possession to the West Bengal Development Corporation on July 26, 1962 and since then has the said Corporation been in possession under arrangement or agreement with Defendant No. 2 as alleged in para. 2 of the written statement. It is in evidence that the State Government obtained possession and gave possession of the same to West Bengal Development Corporation on July 26, 1962. It was suggested that West Bengal Development Corporation remained in such occupation till July 31, 1964. According to Ex. D and the oral evidence of Mukti Sadhan Chakravarti, possession was taken from Defendant No. 2, Prahlad Chandra De. The Plaintiff said that possession was taken from him and his engineer, P.C. Bhattacharya, said that on July 26, 1962, he was at the premises when an inventory was made and he signed. He was asked in Q. 8 as to on whose behalf he was present and he said that he was present on behalf of the owner. There was no cross-examination of P.C. Bhattacharya and his evidence was accepted. Ex. E the inventory shows that it is signed by P.C. Bhattacharya. It was contended on behalf of the Defendants that Ex. E does not show that possession was taken from him. His oral evidence is that he was present but he did not say that possession was taken from the Plaintiff. Counsel for the Plaintiff also did not contend that there was any evidence that the Plaintiff gave possession to Defendant No. 1 as alleged in para. 6 of the plaint.

Issue No. 4 raised on behalf of Defendant No. 1 is whether the Plaintiff is the only person entitled to possession of the premises. The oral evidence and the documentary evidence show, in my opinion, beyond any doubt, that the Plaintiff is the owner of the premises and therefore the issue is to be answered in favour of the Plaintiff.

Issue No. 5 raises the question as to whether the Government is in possession since the month of July, 1962 and if so, is the possession of the Government wrong. The evidence of Fatick Chand Seal is that he does not know when possession was given to West Bengal Development Corporation by Government (Q. 28). In Q. 29 he said that after the premises were requisitioned, the First Land Acquisition Collector asked him the name of the person to whom the premises belonged and he said that he, thereafter, wrote that the premises belonged to him. Fatick Chand Seal also said that an inventory was made in his presence. In Q. 67 he was asked as to whether he received any rent or compensation from July 14, 1962 to April 8, 1963 and thereafter he said that he received no compensation or rent. In Q. 68 he was asked whether any sum was received from Defendant No. 2 after the property was requisitioned and his answer was in the negative. In Q-140 following Fatick Chand Seal was asked as to whether he was calling upon the Land Acquisition Collector to fix the compensation and in Q. 142 he said that the rent was arrived at but it was not finalised. The bundle of documents tendered would also show that there was no agreement regarding compensation. Counsel for the State relied on the decision in Sohanlal Vs. The Union of India (UOI), and contended that possession was given to a third party and therefore the Government was not liable to pay any compensation after the order of rescission. Madhusudan Chakravarty said that after the Land Acquisition Collector took possession, it was given to West Bengal Development Corporation on the same day. There is ho evidence on behalf of Government that after the rescission of the order of requisition possession was given to the owner of the premises.

Under the West Bengal Act of 1947 it will appear in Section 10 that where premises are to be released from requisition the Government shall specify in writing the person to whom delivery or possession of the premises shall be made. In the present case counsel on behalf of the Plaintiff contended that reasons were to be given in the order of rescission and Section 10 of the Act showed that only way where the premises were no longer required to be requisitioned was to release the property. The structure of the Act shows that the Government can requisition a property and therefore, the Government takes several steps in aid of requisition and where premises are to be released from requisition the Statute requires that it shall be specified as to whom delivery of possession shall be made. Delivery of possession to the person specified in the order shall be a full discharge of the State Government from any liability or from any was to release the property. The structure of the Act shows that the order of rescission in the present case was in substance and effect an order of release of the property. Counsel for the State also accepted that position. The order in the present case did not specify as to the person to whom delivery of possession was to be made. The order of rescission would not have the effect of wiping out the requisition because as I have already indicated, there was, in fact, requisition and occupation of the premises under the order of requisition. Persons entitled to the property became entitled to reliefs under the Statute and pursuant to the order of requisition. The Government order of rescission is, in my opinion, bad in the present case by reason of not having specified the person to whom delivery of possession was to be made. The Government may not give reasons for rescission but the Government is bound to follow the Statute and to specify when releasing a property the person to whom it shall be delivered. In the present case it was the duty of the Government to deliver possession of the premises. No evidence has been called on behalf of Defendant No. 2 The Government has given no evidence that the Government is no longer in possession. On the contrary, the evidence appears to be that the Government gave possession to West Bengal Development Corporation and thereafter the Government passed an order of rescission. I am, therefore, of opinion that the Government is in possession and is accountable to the owner. The allegations in para. 10 of the written statement have not been proved by the State and there is no evidence. The second limb of Issue No. 6 is as to whether the West Bengal Development Corporation has been in possession under any arrangement or agreement with Defendant No. 2 and that has not been proved by the State of West Bengal and there is no evidence to warrant any finding in favour of the State. The State Government is therefore accountable.

One of the Issues, No. 8, is whether compensation was agreed upon and fixed. The evidence is that compensation was not fixed. Issue No. 9 is whether the Plaintiff is entitled to the sum alleged as compensation. In view of the fact that compensation has not been agreed upon, I make it clear that in regard to Issues Nos. 8, 9, 10, because no agreement has been arrived at, all questions are left entirely open to the Plaintiff to have redress of his grievances under the law by claiming the same from the State of West Bengal. With regard to Issue No. 10 the question is whether the Plaintiff is entitled to compensation from the period April 9, 1963 to December 9, 1963. The procedure for compensation is laid down in chapter 3 of the Act which consists of Section 11 to 14. It was contended by counsel on behalf of the State that there are provisions with regard to compensation and therefore, this Court has no jurisdiction to deal with that. In my opinion, the contention is sound and correct and therefore these questions of compensation are left open. I make it clear that there is no adjudication as to the amount of compensation that can be claimed by the Plaintiff or that has to be paid by the State of West Bengal. The procedure for determining compensation contemplates an arbitration. The Plaintiff will take recourse to such remedies as the Statute permits.

Issue No. 11 is whether the notice u/s 80 was valid. No argument was advanced by counsel for the State to show that the notice was not valid.

Issue No. 12 is whether the suit is maintainable. The only contention advanced was that this Court has no jurisdiction to determine compensation. I have already said that the question is left open. Issue No. 13 is whether the Plaintiff has any cause of action against the State. In my Opinion, the Plaintiff has cause of action and the Plaintiff has proved it.

I should, estate that counsel for Defendant No. 2 stated that Defendant No. 2 was not interested in Issues Nos. 8, 9, 10, 11, 12 and 13 and therefore, no argument was advanced on his behalf on those Issues. Counsel on behalf of Defendant No. 2 advanced argument on the Issues raised on behalf of Defendant No. 2 and on Issues Nos. 5, 6, 7 and 14. With regard to Issue No. 14, no separate argument was advanced by counsel for Defendant No. 2. In my opinion, the suit is not bad for non-joinder of the West Bengal Development Corporation.

As to Issue No. 7 as to whether the order of rescission was invalid and wrongful, I have already held that Government should have followed the provisions of the Statute and specified the person to whom delivery of possession was to be made.

I have dealt with all the contentions advanced by all the parties. I should state here that apart from these contentions no dither contention was advanced. The result is that Issue No. 1 raised on behalf of Defendant No. 2 is answered against Defendant No. 2 and in favour of the Plaintiff. I hold that the lease dated December 8, 1961, in favour of Defendant No. 2 has been determined as alleged in para. 9 of the plaint. With regard to Issues No. 2(a) and (b) I hold that there was a valid and effective order of requisition. I hold that the Act is not ultra vires the provisions of Section 299 of the Government of India Act. I should state here that no argument was advanced in support of the allegations contained in para. 14(i)(c) of the written statement of Defendant No. 2.

Issue No. 3 is answered in the negative because there is no evidence to warrant any answer in favour of the Plaintiff though I hold that the Plaintiff is the owner.

Issue No. 4 is answered in favour of the Plaintiff.

Issue No. 5 is answered in the affirmative and I hold that the State is accountable to the Plaintiff, but as I have already indicated, the Plaintiff as the owner will follow the statutory rights and reliefs in regard to compensation. this Court cannot award any compensation because of the provisions in the Statute.

With regard to Issue No. 6, it appears on evidence that Government made over possession to the West Bengal Development Corporation on July 26, 1962, but there is no evidence to support the allegation in para. 10 of the written statement and therefore, the second part of Issue No. 6 is answered in the negative.

With regard to Issue No. 7, I have held that the order of rescission is bad by reason of not complying with the provisions contained in Section 10 of the Act in not specifying the person to whom delivery should be made.

With regard to Issues Nos. 8, 9 and 10, I have already held that the question of compensation is left open to the Plaintiff to agitate and claim in accordance with the provisions of the Statute.

Issue No. 11 is answered in the affirmative.

Issue No. 12 is answered in the affirmative.

Issue No. 13 is answered in the affirmative.

Issue No. 14 is answered in the negative. The Plaintiff is entitled to succeed and there will be a decree in terms of prayer (a).

I make it quite clear that I have not held that the order of rescission is invalid but I have only held that the order of rescission in this particular case is bad because it does not specify the person to whom delivery of possession was to be made. If that had been made, delivery would have been given to the rightful person. Therefore, the question of delivery of possession remains open to be canvassed by the Plaintiff against the State of West Bengal. What I have stated is that the order suffers from irregularity which does not go to make the order of rescission invalid, The order of rescission applies with effect from the date of rescission. As far as Defendant No. 2 is concerned, in view of my conclusion that the lease has been determined, the Plaintiff is entitled to delivery of possession against the State of West Bengal.

With regard to compensation and the period for compensation, the question is left open.

The Plaintiff is entitled to costs to be paid by the Defendant No. 2.

There will be a stay of operation of the decree for four weeks.