Surendra Narayan Roy and Another vs State of West Bengal and Others

Kalyanmoy Ganguly, J.—In this application under Article 226 of the Constitution of India, the petitioners raise for writ in the nature of mandamus commanding the respondents to release the premises in question from requisition. In spite of service'', no one appears for the respondents and there is no affidavit-in-opposition on record. The statements and allegations made in the writ petition go unchallenged and uncontroverted.

The uncontroverted case of the petitioners is that they are the landlords in respect of premises No. 2, Raja Rajendra Narayan Street, Calcutta within Police Station Beliaghata.

The said premises was requisitioned under sub-section 1 of section 3 of West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 hereinafter referred to as the 1947 Act, by an order of requisition being No. 184/51 dated June 20, 1951. The possession of the said premises was taken by the First Land Acquisition Collector, Bankshall Street, Calcutta-5, by virtue of the power conferred upon him under sub-section 4 of section 3 of the 1947 Act. The possession of the premises was taken on June 29, 1957 and till this date the possession continues. A copy of the order of requisition has been annexed to the writ petition marked with the letter ''A''. It is significant to note in the said order of requisition that the nature of the public purpose has not been mentioned and it is not known whether such purpose is of a permanent or transitory nature. The rent compensation was unilaterally fixed at Rs. 660/- per month in the year 1951 and the said rent has never been enhanced till to day. The petitioner claims that the Fair Rent of the said premises is at present about Rs. 18,900/- per month as admitted by the registered Surveyor & Valuer. The total area under requisition is 15 Cottahs 8 Chatakhs including a 2 storied poacca building and covered sheds. The covered area is 7561 Sq. Ft. comprising of 33 rooms. The petitioners submit that the purported extension of operation of the said Act from time to time and the continuation of the requisition of the said premises of the power is colourable and malafide and is without the sanction of law.

It may be mentioned here that the said 1947 Act-is a temporary Act which has been extended from time to time.

It may be noted here.that although in the order of requisition the nature of the public purpose is not mentioned, yet it seems that the purpose is of a permanent nature as the property in question is under requisition for the last 38 years almost.

In the case of H.D. Vora Vs. State of Maharashtra and Others, the Hon''ble Supreme Court has held that the mere non mention of the specific public purpose will not make the order of requisition bad if in fact it can be shown that the purpose of the requisition is really a public purpose.

The said case further dealt with the difference between the concepts of'' requisition and acquisition holding inter alia, that acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of right which was vested with the original holder passes on acquisition to the acquirer leaving nothing to the former. The concept of acquisitions has an. air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration.

The Hon''ble Supreme Court goes on to state that the Government cannot under the guise of requisition continue for an indefinite petition of time, in substance acquire the property, because that would be a fraud on the power conferred-on the Government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute for the Government would be requisitioning the premises when really specking they want the premises for acquisition, the object of taking the premises being but permanent in character.

In the aforesaid case the order of requisition was held to have ceased to be valid even though it was valid when made as it continued for an unreasonably long period such as 30 years. In the case of Jiwani Devi Paraki Vs. First Land Acquisition Collector, Calcutta and Others, the Hon''ble Supreme Court in a similar situation directed the Government to acquire the property in question when the public purpose was of a permanent nature.

In a very recent case of Gour Roychowdhury Vs. State of West Bengal and Others, similar views were echoed.

In view of the aforesaid judgment of the Hon''ble Supreme Court and of this Court, I am constrained to hold that in the instant ease also the undue prolongation of the period of requisition makes it bad in law and amounts to a coburable exercise of the power making it a fraud on the statute. In the circumstances, the respondents, if they are of the opinion that the public purpose is to Continue for an indefinite period of time, should take immediate step to acquire ire the property in accordance with law and terminate the requisition. The respondents are also directed to refix the monthly rent compensation in accordance with the provisions of 1947 Act irrespective of the fact as to whether they are going to acquire the property. The acquisition proceedings, if needed, should be initiated within six months from the date of communication of this order and the question of refixing and the revision of the monthly compensation should also be taken up within 6 months and should be refixed with retrospective effect in a slab system that is to say the entire period between 1951 and 1989 should be divided into several phases and the compensation should be fixed in. respect of those phases. Such refixation must be completed wit in 3 months ''from the date of initiation of such refixation/revision proceedings and the arrears should be paid within 3 months from the date of completion of such proceedings.

If the authorities do not. contemplate acquiring the property they are directed to de-requisition the property forthwith.

The rule is disposed of as above.

There will be no order as to costs.