Calcutta High Court
Chhater Singh Baid vs The State Of West Bengal & Anr on 20 December, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
C.S. 62 of 2001
Chhater Singh Baid
... Plaintiff
-Versus-
The State of West Bengal & Anr.
... Defendants
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
December 20, 2018.
Mr. Suman Kumar Dutt,
Ms. Hashnuhana Chakraborty,
Mr. Reetobroto Mitra,
... for the plaintiff
Mr. Sakya Sen,
Mr. Tauseef Ahmed Khan,
Mr. Paritosh Sinha
... for the defendants
The Court : This is a suit claiming for a decree for khas
possession of an area mentioned and described in Schedule 'A' to the
plaint and also for a decree for Rs.85,23,362.36/- (Rupees Eighty
Five Lakh Twenty Three Thousand Three Hundred Sixty Two and
Thirty Six Paisa) only, as pleaded in paragraph 24 of the plaint and
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also for a decree for mesne profit and/or occupation charges at the
rate of Rs.1,36,000/- (Rupees One Lakh Thirty Six Thousand) only,
per month from December, 2001 until delivery of possession,
alternatively an enquiry into the mesne profit/damages for wrongful
occupation and possession by the defendants and a decree be passed
for such sum as may be found due and payable upon such enquiry,
interim interest, interest upon judgment, Receiver, injunction, cost
and further or other reliefs. The plaint was presented and admitted
on 7th February, 2001. Summons were issued and served upon the
defendants and they filed written statement on 30th August, 2001
verified by one Sandip Ghosh, Land Acquisition Collector.
The instant suit and the claims made thereunder relates to the
requisition, de-requisition and acquisition of premises no.2, Church
Lane, Calcutta - 700001. The plaintiff's case is based on the following
fact :
i) On February 9, 1972, an order being no.9/72, the
defendant no.2 requisitioned approximately 4874
Sq.ft. on the Northern portion of the 2nd floor of
premises no.2, Church Lane, Calcutta - 700001 under
the provisions of Section 3(1) of the West Bengal
Premises Requisition and Control (Temporary
Provisions) Act, 1947 and in support thereof, the
plaintiff has filed a document being PD-2 of the
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Judge's Brief of Documents which is marked Exhibit -
'C'.
ii) On February 10, 1972, the defendant no.1 issued a
possession certificate in favour of Home (E&E)
Department in respect of the said premises and in
support thereof, the plaintiff has relied on a document
being DD-1 at page 1 of the defendants' documents in
the Judge's Brief which was marked as Exhibit '1'.
iii) On March 22, 1974, by an indenture of lease the
lessors therein granted in favour of Oswal Holdings, of
which the plaintiff claimed to be the proprietor
granted lease for a period of ninety nine years from
April 1, 1974 to March 31, 2073 in respect of the
premises no.2, Church Lane, Calcutta - 700001 and
in support thereof, document being PD-1 at pages 1to
24 of the Judge's Brief of Documents has been relied
on by the plaintiff.
iv) On February 26, 1985, an order was issued whereby a
portion of the requisitioned property being 1581 Sq.ft.
out of 3458 Sq.ft. was de-requisitioned by the
defendants and in support thereof, the plaintiff relied
on a document being PD-6 at page 31 of the Judge's
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Brief of Documents and which was marked as Exhibit
- 'G'.
v) On March 8, 1985, possession in respect of the said
1581 Sq.ft. was handed over to the plaintiff by way of
restoration certificate. The defendant no.1 retained
with it 1877 Sq.ft. (3458 Sq.ft. - 1581 Sq.ft.) and in
support thereof, the plaintiff relied on a document
being DD-3 (defendants' document) at page 3.
vi) On July 2, 1987, the plaintiff, by a letter, offered to
exchange a portion of the retained requisitioned
property and in support thereof, the plaintiff relied on
a document being PD-7 at page 32 of the Judge's Brief
of Documents which was marked as Exhibit 'H'.
vii) On December, 16, 1987, an agreement which was
prepared and sent to the plaintiff by the defendants,
was completed and signed by the plaintiff and
forwarded the same to the defendant for necessary
action. In support thereof, the plaintiff has relied on a
document being PD-10 at pages 38 to 40 of the
Judge's Brief of Documents which was marked as
Exhibit 'K'.
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viii) On December 16, 1987, pursuant to an offer from
the defendant to provide an alternative
accommodation and the newly constructed annexed
building in the suit premises in exchange of 1877
Sq.ft., still retained by the defendant no.1, an
agreement was entered into between the plaintiff and
the defendant no.2. The defendant agreed to de-
requisition the said retained requisitioned area of
1877 Sq.ft. and simultaneously, to requisition 1600
Sq.ft. on third floor of the newly constructed annexed
building at the suit premises.
ix) On December 18, 1987, a release order being no.9/72
was issued and by virtue thereof, the defendant no.2
de-requisitioned the said 1855 sq.ft. on second floor of
the said premises and directed the plaintiff to take
possession of the same on December 18, 1987 in
support thereof, the plaintiff has relied on a document
being DD-4 at page 4 of the defendants' documents
being marked as Exhibit '4'.
x) On December 18, 1987, a requisition order being
no.3/87 was issued by the defendant no.2 and
requisitioned an area of 1600 Sq.ft. on the third floor
of the newly constructed building at 2, Church Lane,
Calcutta - 700001 and directed the defendant no.1 to
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take over possession of the said portion of the said
building being the suit property, so requisitioned.
xi) On December 24, 1987, the defendant no.1 issued two
orders, the first being order no.9/72 directing release
of 1855 Sq.ft. being portion retained in the second
floor of the said premises and other being order
no.3/87 thereby requisitioning one hall on the third
floor measuring about 1600 Sq.ft. approximately in
the newly constructed annexed building of the said
premises under Section 3(1) of the West Bengal
Premises Requisition and Control (Temporary
Provisions) Act, 1947. Such new space in the new
building was requisitioned on the basis that the said
space was in lieu of 1855 Sq.ft. of the retained portion
in the second floor of the old building. The plaintiff
simultaneously took possession of the de-
requisitioned space in the old building and handed
over the space in the new building measuring about
1600 Sq.ft and in support thereof, the plaintiff relied
on a document being PD-12 at pages 41, 42 and 43 of
the Judge's Brief of Documents which has been
marked as Exhibit 'M'.
xii) On December 24, 1987, the defendant no.1 issued
possession certificate in respect of an area of 1600
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Sq.ft. in the newly constructed annexed building on
third floor of premises no.2, Church Lane, Calcutta -
700001 and in support thereof, the plaintiff relies on a
document being DD-8 at page 8 of the defendants'
documents which has been marked as Exhibit '8'.
xiii) On April 9, 1991, by an order of release being
no.9/72, the defendant no.2 de-requisitioned the
remaining portion measuring about 22 Sq.ft. on the
second floor of the suit premises which is under
occupation of the Public Undertakings Department
and directed the plaintiff to take necessary possession
of the same and in support thereof, the plaintiff relies
on defendants' document being DD-5 which has been
marked as Exhibit '5'.
xiv) On April 16, 1991, the possession of the balance
22 Sq.ft. (1877 Sq.ft. - 1855 Sq.ft.) area in the second
floor of the said premises was handed over to the
plaintiff by way of a restoration certificate and in
support thereof, the plaintiff relied on the defendants'
document being DD-1 at page 6 and which was
admitted into evidence and marked as Exhibit '6'.
xv) On August 24, 1998, a writ petition being W.P.
No.1040 of 1997 was filed by the plaintiff contending,
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inter alia, that in view of the order of requisition dated
9th February, 1972 and terms of provisions of Sections
10A and 10B of the West Bengal Premises Requisition
and Control (Second Amendment) Act, 1986, which
came into force on March 31, 1987, the defendant is
bound and obliged to de-requisition the requisitioned
portion of the suit property on or before the expiry of
the period of 25 years from the date of requisition,
which period expired on February 9, 1997 and the
defendants also were bound and liable to de-
requisition the area of 1600 Sq.ft. on the third floor of
the annexed building and hand back possession to
the plaintiff and, accordingly, prayed for de-requisition
of the suit premises.
After hearing the rival contentions of the
parties by the order dated August 24, 1998, the
Hon'ble Justice Barin Ghosh (as His Lordship
then was) was pleased to hold that the
defendants were, in law, bound to de-requisition
the suit property as the requisition order dated
December 24, 1987 was a continuation of the
earlier requisition order dated February 9, 1972
and thereby directed the defendant to de-
requisition the said property and in support
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thereof, the plaintiff relied on a document being
PD-15 at pages 47 to 54 being Exhibit 'P'.
xvi) On September 25, 1998, a notification dated
September 4, 1998 was issued under Section 4 of the
Land Acquisition Act, 1894 in respect of the said
portion on the third floor of the annexed building of
the suit premises and the same was published in the
official gazette. The plaintiff has relied on a document
being PD-16 which has been marked as Exhibit 'Q'
and plaintiff has also relied on a document being DD-
9 which is marked as Exhibit '9'.
xvii) On May 24, 1999, a notification dated May 21,
1999 was issued under Section 6 of the Land
Acquisition Act, 1894 in respect of the said portion on
the third floor of annexed building of the suit premises
and the same was published in the official gazette.
The plaintiff relied on a document being PD-17 at
pages 57-58 of the Judge's Brief of Documents which
has been marked as Exhibit 'R'. Another document
being DD-10 has also been relied on by the plaintiff
and marked Exhibit '10'.
xviii) On July 6, 2001, an award was made under the
Land Acquisition Act, 1894 and the same being relied
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on by the defendant as their document no.DD-13 has
been exhibited as Exhibit '12'.
xix) On December 20, 2001, a possession certificate
was issued by the defendants after taking formal
possession from the plaintiff of the suit property on
the third floor of the annexed building acquired under
the Land Acquisition Act, 1894. The plaintiff relied on
a document placed by the defendant being DD-14 and
marked as Exhibit '13'.
The defendants have disputed the plaint case by filing written
statement. On consideration of the pleadings in the plaint and the
written statement and after hearing the submissions made by the
parties in the suit, by an order dated 13th November, 2017, following
issues were framed:
1) Is the plaintiff entitled to get occupation charges
for alleged wrongful occupation of an area of 1600
sq.ft. by the defendant no.1 for the period from 9th
February, 1997 to 19th December, 2001 or for any
other period and if so whether the occupation
charge should be at the rate of Rs.1,36,000/- per
month or any other prevailing market rate.
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2) Whether the plaintiff is entitled to get pre-interest,
pendente lite interest and interest on judgment at
the rate of 18 per cent per annum or at any other
rate.
3) To what other relief, if any, is the plaintiff entitled.
Since all the issues are interrelated and centers round issue
no.1, I propose to dispose of all the issues together.
In order to prove his case the plaintiff himself deposed as PW-1
and one Ashoke Nain the Valuer/Civil Engineer deposed before this
Court as PW-2. In support of his case the plaintiff tendered in
evidence various documents which have been admitted into evidence
and marked as Exhibit-A to Exhibit-U. Plaintiff relied on an order
being No. 9/72 issued by the defendant first Land Acquisition
Collector, Calcutta in exercise of the power conferred by him under
sub-section (1) of Section 3 of the West Bengal Premises Requisition
and Control (Temporary Provisions) Act, 1947 (West Bengal Act 'V' of
1947) thereby requisitioning portion of the 2nd floor of premises No.2,
Church Lane, Calcutta, which was in occupation of the South
Eastern Railway. The plaintiff has relied on the defendants' document
being Exhibit-1, which is the possession certificate issued by the
receiving officer from the office of the Land Acquisition Collector,
Calcutta. The letter acknowledges that possession was received from
the representative of CCS (refund), South Eastern Railway in respect
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of the schedule of the property mentioned in the said Exhibit-1. The
said schedule has been described as follows:
"Premises No.2, Church Lane (2nd floor portion in occupation of
South Eastern Railway consists of two halls, four rooms and four
lavatory units)." Relying on the indenture of lease (Exhibit-B) the
plaintiff stated that such lease was granted in favour of the Oswal
Holdings, by which the plaintiff is the proprietor. It is deposed that
the lease was for the period of 99 years from April 1, 1974 to March
31, 2073 in respect of premises No.2, Church Lane, Calcutta-700001.
Relying on Exhibit-G the plaintiff has deposed, by the order dated
26th February, 1985 a portion of the requisitioned property that is
1581 Sq. ft. out of 3458 Sq. ft. was de-requisitioned by the
defendants. According to the plaintiff, possession was handed over to
the plaintiff in respect of 1581 Sq. ft. by way of restoration certificate
which would be borne out from Exhibit-3 tendered by the defendant.
The plaintiff, by a letter, offered to exchange a portion of the
requisitioned property in terms of Exhibit-H, copy of which is
available at page 32 of the Judges' Brief of Document. According to
the plaintiff, an agreement was prepared and signed by the plaintiff
and forwarded to the defendants for necessary action being Exhibit-K
at pages 38-40 of Judges' Brief of Document. The defendants passed
an order of release being order No. 9/72 dated 8th December 1987
requisitioned an area of 1855 Sq. ft. on the 2nd floor of the suit
premises and directed the plaintiff to take possession of the same.
The said letter is Exhibit-4, which is tendered by the defendant. The
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plaintiff relied on the Defendants' Document (Ext. 7) to show that a
requisition order no.3/87 was issued whereby the defendant no.2
requisitioned an area of 1600 Sq. ft on the third floor of the newly
constructed annexed building at 2, Church Lane, Calcutta-700001
and directed the defendant no.1 to take over possession of the said
portion of the said building. It has been deposed by the plaintiff that
the defendant issued two orders first being order no.9/72 and the
document have been tendered and marked as Exhibit-10 and
directing release of 1855 Sq. ft. if portion retained in the 2nd floor of
the said premises and the other being order no. 3/87 thereby
requisitioning one hall on the third floor measuring about 1600 Sq. ft.
approximately in the newly constructed annexed building of the said
premises under Section 3(1) of the West Bengal Premises Requisition
and Control (Temporary Provisions) Act, 1947. It is the case of the
plaintiff that such new space in the new building was requisitioned
on the basis that the said space was in lieu of 1855 Sq. ft. of the
retained portion of the 2nd floor of the old building. The plaintiff
simultaneously took possession of the requisitioned place in the old
building and handed over the space in the new building measuring
about 1600 Sq. ft. The plaintiff relying on Exhibit-8, a document
tendered by the defendant, deposed that defendant no.1 issued
possession certificate in respect of an area of 1600 Sq. ft. in the newly
constructed annexed building of third floor, premises no. 2, Church
Lane, Calcutta-700001. The plaintiff deposed that by release order
no. 9/72 dated April 9, 1991 (Ext. 5) the defendant no.2 de-
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requisitioned the remaining portion measuring about 22 Sq. ft. on the
2nd floor of the said premises, which is under occupation of Public
Undertaking Department and directed the plaintiff to take possession
of the same. Relying on Exhibit-6 a document tendered by the
defendant dated 16th April, 1991 the plaintiff deposed that possession
of the balance 22 Sq. ft. area in the 2nd floor of the said premises was
handed over to the plaintiff by way of restoration certificate. Plaintiff
has deposed that a writ petition being no. W.P.1040 of 1997 was filed
on 24th August, 1998 by the plaintiff contending, inter alia, that in
view of the order of requisition dated 9th February, 1972 and in terms
of the provision of Section 10A and 10B of West Bengal Premises
Requisition and Control (Second Amendment) Act, 1986 which came
into force on March 31, 1987 the defendant is bound and obliged to
de-requisition the requisitioned portion of the suit property on or
before the expiry of the period of 25 years from the date of
requisition, which period expired on February 9, 1997 and the
defendants were also bound and liable to de-requisition the area of
1600 Sq. ft on the third floor of the annexed building and hand back
possession to the plaintiff and, accordingly, prayed for de-requisition
of the suit premises. According to the plaintiff, after hearing rival
contention of the parties, by the order dated 24th August, 1998, the
Hon'ble Justice Barin Ghosh (as His Lordship then was) was pleased
to hold that the defendants were, in law, bound to de-requisition the
suit property as the requisition order dated December 24, 1987 was a
continuation of the earlier requisition order dated 9th February, 1972
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and thereby directed the defendant to de-requisition the said
property. A notification dated September, 1998 (Exhibit-Q) was
issued under Section 4 of the Land Acquisition Act, 1894 in respect of
the portion on the third floor of the annexed building of the suit
premises was published in the official gazette, thereby intending to
utilize the land for public service on the public expense and inviting
objection to acquisition thereof within 30 days after the date on
which the public notice of the substance of the said notification is
given in the locality. Plaintiff also relies on a document of the
defendant being Exhibit-9, which is the same document (Exhibit-Q)
has been tendered by the defendant.
Plaintiff has also tendered a document being declaration dated
21st May, 1999 (Exhibit -R) issued under Section 6 of the Land
Acquisition Act, 1894 in respect of the said portion on the third floor
of the annexed building of the suit premises which was published in
the official gazette on 24th May, 1999. The same documents have also
been relied on by the defendants (Ext. 10) at page 13 of the
Defendants' Judge's Brief of Documents. An award which was made
under the Land Acquisition Act, 1894 on 6th July, 2001 was also
tendered by the defendants (Ext. 12) at page 18 of the defendants'
Judge's Brief of Documents.
The plaintiff lastly relied on a document being possession
certificate (Ext. 13) which was issued by the defendants after taking
formal possession from the plaintiff of the suit property on the third
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floor of the annexed building acquired under the Land Acquisition
Act, 1894.
The defendants in support of their case deposed through Prajjal
Sengupta, Land Acquisition Collector (DW-1) and Satya Shankar
Chakladar (DW-2) who has prepared the valuation report. The
defendants tendered number of documents in evidence those were
marked as "Exhibit-1 to Exhibit-14" barring the Exhibit no.1, Exhibit
no.4, Exhibit no.5, Exhibit no.6, Exhibit no.7, Exhibit no.8, Exhibit
no.9, Exhibit no.10, Exhibit no.12 and Exhibit no.13 those are
already relied on by the plaintiff. The other document tendered by the
defendants in evidence being Exhibit-2 which is a document dated
26th February, 1985 is an order no. 9/72 issued by the Deputy
Secretary to the Government of West Bengal whereby the premises
being an area measuring 1581 Sq. ft. out of 3458 Sq. ft. being the
western portion of the 2nd Floor of premises no.2, Church Lane,
Calcutta-700001 were requisitioned under sub-Section (1) of Section
3 of the West Bengal Premises Requisition and Control (Temporary
Provisions) Act, 1947 (West Bengal Act, 'V' of 1947) by the
Government of West Bengal, in the Land and Land Revenue
Department by order no. 9/72 - Reqn. dated 9th February, 1972. The
said order further shows that the said premises was to be released
from requisition. The document (Ext.-2) further reveals that in
exercise of the power conferred by sub-Section (1) of Section 10 of the
said Act, the Governor was pleased to specify after causing necessary
inquiry to be made the person mentioned in column no.1 namely M/s
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Oswal Holdings - lessee of 7 Swallow Lane, Calcutta -700001 of the
schedule mentioned under the said letter to the person to whom
delivery of possession of the premises described in column no.2
hereinbefore mentioned shall be made. A document being an order
no.3/87 Reqn., dated 18th December, 1987 issued by the Deputy
Secretary to the Government of West Bengal whereby a further
requisition was made in respect of the premises described in the
schedule of the said order under sub-Section (4) of Section 3 of the
West Bengal Premises Requisition and Control (Temporary Provisions)
Act, 1947 and to direct the First Land Acquisition Collector, Kolkata
to take further action as is necessary in connection with such
requisition of the premises in accordance with provisions of the said
Act and to take possession of the premises so requisitioned. The
schedule of the said order is set out below:
"The Schedule
Description of premises
Premises no.2, Church Lane, Calcutta -700001 (one hall on 3rd
floor measuring an area of 1600 sq ft. more or less situated in
the newly constructed annexed building with the right of use of
lift, staircase, electricity, water pipe, urinal and lavatory)."
The said document was marked as Exhibit-7. The other
document tendered by the defendant is Exhibit-11 which is a letter
dated 21st May, 1999 published in the official gazette on 24th May,
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1999. The said document is a declaration under Section 6 of the Land
Acquisition Act, 1894.
According to the plaint case, by virtue of the provisions of
Sections 10A and 10B of the West Bengal Premises Requisition and
Control (Second Amendment), Act, 1986 which came into effect on
and from 31st March, 1987, the concerned authorities including the
defendants ought to have de-requisitioned the said requisitioned
portion of 1600 sq.ft. before expiry of 25 years from the date of
requisition of the said premises. Period of 25 years expired on
09.02.1997and the defendants became liable to forthwith de- requisition the said hall measuring 1600 sq.ft. on the third floor of the newly annexed building and were to hand back possession thereof to the plaintiff. According to the plaint case, the requisition order no.3/87 for the hall on the third floor of the newly annexed building had been issued in substitution of the order no.9/72 and the new order of requisition was an extension of the formal requisition order, which was provided as alternative accommodation and in continuation of earlier requisition order no.9/72. According to the plaintiff, they are entitled to charge the defendants reasonable letting out value of the said area at the rate of Rs.85/- per sq.ft. and the plaintiff is entitled to earn Rs.1,36,000/- (Rupees One Lakh Thirty Six Thousand) only, per month in respect of the area which is allegedly under the wrongful and illegal possession of the defendants in the said premises. The plaintiff, therefore, claims the said amount of Rs.1,36,000/- per month for the said premises by way of mesne
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profit and/or occupation charges on and from February 9, 1997 till filing of the suit. Plaint was presented and admitted on 7th February, 2001. In paragraph 24 of the plaint the plaintiff claimed for a sum of Rs.63,48,285.71/- (Rupees Sixty Three Lakh Forty Eight Thousand Two Hundred Eighty Five and Seventy One Paisa) only, as and by way of mesne profit or occupation charges for wrongful occupation at the rate of Rs.1,36,000/- per month for an area of 1600 sq.ft. in occupation of the defendant no.1 from 9th February, 1997 till 31st December, 2000 together with interest thereon at the rate of 18% per month up to December 31, 2000 for a sum of Rs.21,75,076.65/- (Rupees Twenty One Lakh Seventy Five Thousand Seventy Six and Sixty Five Paisa) only. Therefore, the total claim made by the plaintiff up to December 31, 2000 is Rs.85,23,362.36/- (Rupees Eighty Five Lakh Twenty Three Thousand Three Hundred Sixty Two and Thirty Six Paisa) only. The plaintiff has made a further claim of mesne profit and/or occupation charges at the said rate per day from the defendant no.1 and/or defendants on and from 1st January, 2001 until vacant possession was received by the plaintiff. However, at the argument stage the plaintiff has conceded that prayer 'a' of the plaint for khas possession of suit property is not pressed for as property has been duly acquired by the Government in accordance with law. The plaintiff has proposed to curtail their claim till 19th December, 2000 and has conceded that their claim cannot extend beyond 19th December, 2000.
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The only issue arises for consideration in this suit is to determine the period during which the suit property was in unauthorized occupation of the State and the rate at which the plaintiff would be entitled to occupation charges and the length of the period. It is the admitted fact that State Government requisitioned the suit property under the provisions of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 on February 9, 1972. The suit property had to be shifted to a newly constructed annexed building and as a result thereof, it was under
the necessity the State had to issue a new requisition order dated December 18, 1987 which lasted for a period of 25 years following the provisions of the said Act. Question arose as to when the said 25 years would have expired in the facts and circumstances of the present case. The plaintiff contended that the subsequent requisition order of 1987 was merely a continuation of the first requisition order of 1972 which the defendant contended that the requisition order of 1987 was a new and independent requisition which was issued pursuant to the agreement between the parties. Concerning this dispute, matter went up to Hon'ble Division Bench and while disposing of the appeal being A.P.O.T. No.86 of 2000 (G.A. No.451 of 2000; W.P.1040 of 1997 and A.O.R. No.16 of 2000) ruled that -
"...this being the case, therefore, the intention of the parties was clear that the newly requisitioned property was in lieu of the earlier requisitioned property and, therefore, the requisition order issued on 24th December, 1987, even though did not say so in itself, was clearly in continuation of the earlier
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order issued in 1972 and, therefore, 25 years' period in respect of the property in question would commence from 1972 and not from the year 1987. The learned Single Judge, while allowing the writ application, gave liberty to the appellant to take such steps for acquisition of the property if so advised..."
In view of the aforesaid Hon'ble Division Bench order, it does not appear that contention raised by the plaintiff that subsequent requisition order of 1987 was merely a continuation of the first requisition order of 1972 rather it is apparently correct to uphold the contention of the defendant that the requisition order of 1987 was a new and independent requisition as would be evident if a comparison is made between Exhibit 1 and Exhibit 4. In view of the above, the requisition period ended on 9th February, 1997. Therefore, the question may arise for unauthorized occupation of the premises by the State Authority from 9th February, 1997 till the property was handed back by the State to the plaintiff after expiry of the period of requisition and/or the moment the property was acquired under the provisions of Land Acquisition Act, 1894. It has been noticed that the process for acquisition of the suit property under the provisions of the Land Acquisition Act, 1894 was initiated by the State on 2nd November, 1998, the day when Section 4 of Land Acquisition Act, 1894 notification was published. Nothing is apparent on the record that further steps as required after acquisition proceeding started have not been complied with under the Act rather Gazette declaration was made under Section 6 of the Land Acquisition Act, 1894 in
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respect of the said portion (third floor) on the annexed building of the suit premises was issued on 24.05.1999 (Ext. 11). Exhibit 11 discloses that the substance of the said declaration was published on 06.07.1999 in the Calcutta Gazette Extraordinary. Finally, it is apparent from Exhibit 12 that award under Section 11 of Act I of 1894 was passed on 06.07.2001. Exhibit 13 shows that on 20th December, 2001 the said portion of the suit premises on third floor of the annexed building was acquired under the Land Acquisition Act, 1894 and possession thereof was taken formally from the plaintiff on 20th December, 2001. Exhibit 12 further discloses that the amount of Rs.10,78,071.56/- (Rupees Ten Lakh Seventy Eight Thousand Seventy One and Fifty Six Paisa) only, had been determined to be the award in the said acquisition proceeding and the determination was made on the basis of all the components as stipulated under Section 23(1A) of the Land Acquisition Act, 1894. The award also includes an amount of Rs.2,13,829.42/- (Rupees Two Lakh Thirteen Thousand Eight Hundred Twenty Nine and Forty Two Paisa) only, by way of an additional amount being the sum calculated at the rate of Rs.12% per annum on the market value for the period commencing from 02.11.1998, that is, the date of publication under Section 4(1) of the Land Acquisition Act, 1894 to 06.07.2001 being the date of award (Ext. 12). It has been stated that the award amount was placed by the defendant-State being the Special Land Acquisition Judge, Alipore as civil deposit.
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If the requisition period ended on 09.02.1997 there is no reason for this Court to hold that the plaintiff is entitled to mesne profit for any other period other than the period in between 10th February, 1997 to 1st November, 1998 as indicated above because the notification under Section 4 of the Land Acquisition Act, 1894 was issued on 02.11.1998. The plaintiff would, therefore, be entitled to occupation charges for the period from 10th February, 1997 to 1st November, 1998.
On behalf of the plaintiff it was argued that, although, process for acquisition was started from 2nd November, 1998 but the property was acquired on 20th December, 2001 and, therefore, plaintiff is entitled to the occupation charges till 20th December, 2001. Such claim cannot be accepted in view of the fact that after the notification under Section 4 of the Land Acquisition Act, 1894 was published on 2nd November, 1998, the property was pending under acquisition proceeding and while publishing the award the compensation has been calculated on and from the said date, that is, 2nd November, 1998. Therefore, in my view, the plaintiff is entitled to compensation only for the period from 9th February, 1997 to 1st November, 1998.
The decision in the case of Benarasi Sha - Vs. - Lakshmi Rani Dey Sarkar, reported in (1966) ILR (2) Cal 662 decided by a Single Judge of this Hon'ble Court that whether after notification for purposes of acquisition under the Land Acquisition Act, 1894, but prior to taking over possession under the said acquisition, the title to the property sought to be acquired vests under the Government or
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remains with the original owner, the Hon'ble Court held - "Even if there was notification for acquisition, until possession is taken by the Collector, the owner's title is not disturbed." This proposition is not disputed. The dispute arises in the present case is of different type whether after the acquisition proceeding proceeded and the Government having taken care of the compensation for the said period after the notification has been issued can again be assessed and money be paid to the owner on some other heading. The ratio decided in this case does not help Mr. Ghosh's client to get double compensation for selfsame period.
The next question arises - At what rate the plaintiff is entitled to receive the mesne profit for the said period?
In order to substantiate the claim made in the plaint the plaintiff has tendered in evidence a valuation report (Ext. Q) by Mr. Ashok Nain (PW 2) dated November 1, 2000.
In question no.6 PW2 stated "This is a valuation report prepared by me on 01.11.00 pertaining to the determination of a fair market monthly rent for a portion of the south western portion on the third floor of premises no.2, Church Lane, further for Chhater Singh Baid, who was the proprietor of Oswal Holdings."
In question no.8 he said he has prepared the report, although, plaintiff relied on the evidence of the PW 2 who deposed on Exhibit Q. The answer given by PW2 in question no.22 is relevant - "Yes,
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location of the entire premises at the corner of the Church Lane and I do not remember the other Street. It is the corner building on the Church Lane."
Again, in question no.34 PW2 answered - "I have mentioned two sale instances - one is Park Street and the other is similar portion in the same building."
And in question no.35 he said - "I am a professional Engineer or valuer and I got a lot of information either from my colleagues or some work experience because now I am more or less retired."
He again stated in question no.36 and 37 that - "So I take it that rate of rent which would have mentioned in his report about Park Street property and without force concerning the same are based on your personal knowledge?/ Yes, it is my personal knowledge."
"Have you disclosed any documentary proof in respect of the information which would have disclosed in your report about Park Street property?/ In my report, I have not made any attachment. I have only done this work though I did not have any solid evidence."
From other disclosures in this suit it is apparent that the area at Church Lane is situated at a place which is surrounded by Government Offices. It is no doubt difficult to get a comparative letting out value in those areas and the valuer has taken into consideration the valuation of Park Street property. In my view, Park Street and Church Lane is within the same zone in Kolkata.
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Although, the defendant agitated in their argument that the area at Park Street is at a faraway place from the suit premises, but the valuer could have taken valuation on Chowringhee Road which he has not. In my assessment, Chowringhee Road property would have been much more valued than the Park Street property. I do not find any reason to disbelieve the report of the valuer. Apart from the distance of Park Street property from that of the suit property no other point has been agitated on behalf of the defendant to dispute the valuation so made by the valuer. Therefore, in my view, this valuation may be accepted and, I, accordingly, intend to decree the suit by directing that the plaintiff would be entitled to a compensation for the period from 9th February, 1997 to 1st November, 1998 and, the month of February is considered to be a whole month for the purpose of calculation of compensation. Therefore, the plaintiff is entitled to compensation for the 21 months at plaintiff's own rate of Rs.1,36,000/- (One Lakh Thirty Six Thousand) only, as mentioned in paragraph 24 of the plaint. The plaintiff is also entitled to an interest on the said amount which I award at the rate of 8% per annum. Thus, plaintiff does get a decree for a sum of Rs.28,56,000/-(Twenty Eight Lakh Fifty Six Thousand) only, towards mesne profit and/or compensation at the rate of Rs.1,36,000/- (One Lakh Thirty Six Thousand) only, per month for the said period. The plaintiff gets a decree towards interest at the rate of 8% per annum on the decretal amount till realization of the same.
Suit is, accordingly, decreed.
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Department is directed to draw up and complete the decree as expeditiously as possible.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)