Calcutta High Court
District Magistrate And Ors. vs Himal Enterprises (Private) Ltd. And ... on 2 March, 1987
Equivalent citations: (1987)0CALLT241(HC), 91CWN985
JUDGMENT M.N. Roy, J.
1. An order of requisition of the land and buildings with furnitures In R.S. Plot No. 396, Mouza-Chandhaghar. J.L. No. 44, P.S. Barasat 24-Parganas (hereinafter referred to as the said premises) as issued under Sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as the said Act), was challenged in this Court in a proceeding under Article 226 of the Constitution of India by the owners of the said premises, who are M/s. Himal Enterprises (Private) Ltd. a Company incorporated under the Sikkim Companies Act and also by one of their Directors Mrs. Sova Shresthe. The writ petitioners are the Respondents in this Appeal and the Civil Order No. 4112(W) 1986, in which the requisition under the said Act were challenged on being disposed of in favour of the petitioners therein, this Appeal was presented by the Respondent State of West Bengal and their authorities, on July, 198G.
2. The petitioners in the writ petition claimed that the Company as mentioned above, at all material times was and still is the owner of the said premises and they acquired the same by purchase on January 16, 1976 from the erstwhile owners. It was also their case that after such purchase the Company, i.e., the petitioner No. 1 in the writ proceedings, spent a huge sum of money for the purpose of renovation, with the object that their Directors could stay therein. According to the petitioners, there was and has been a brick built one storied building (Bungalow) containing a total area of 24 cottahas (.39 acres) and it was also their case that very recently the Bungalow in question, was thoroughly repaired and renovated on spending a considerable amount, apart from that, they have also claimed to have spent large sums of money for having necessary furnitures and fixtures and other decorative items and they at all material times web and still are kept in the Bungalow in question. It was also the case of the petitioners that they have further got a telephone connection installed in the Bungalow and the said telephone connection, at the time of requisition of the said premises, was operative. The petitioners have further stated that after such acquiring of the said premises, they have paid all taxes, rates, electric charges and charges for telephone connection, regularly.
3. It was also the case of the petitioners that on March 3, 1986, when one of the Directors of the petitioner No. 1, was present at the said premises but were at Calcutta, some persons claiming themselves to be the representatives of the office of the Collector, North 24-Parganas, came at the office of the petitioner No. 1, at 13, Lowdown Street, Calcutta at about 5.30 p. m. and handed over a purported order which was said to have been issued under Sub-section (1) of Section 3 of the said Act. The order was dated March 1, 1986 and the number of the same was 5/86. The requisition order will be hearafter referred to as the said order and by the said the Deputy Secretary of the Government of West Bengal requisitioned the said premises, claiming the same to be needed for a public purpose. The said order has been disclosed as Annexure "A" to the writ petition and on a reference to the same it would appear that the land and buildings with furniture in R. S. Plot No. 396 having an area of more or less 0.35 acres of Mouza Chandhaghar, J. L. No. 44, P. S. Barasat, District-24 Parganas was sought to be requisitioned and the same was sought to be served on Mr. B. K. Sherestha with a request to deliver possession of the said premises to the representative, one Shri J. Mukherjee, Head Surveyor, who was stated to be the representative of the Office of the Collector concerned, on March 3, 1986 at 4-45 p. m.
4. The petitioners have claimed and contended that in the said order there was no actual specification of the purposes for which the said premises were required by the Government and in the absence of any specific particulars, with regard to the purposes for which the said premises was being requisitioned, the said order was wholly bad, illegal and should be set-aside.
5. It was also the categorical case of the petitioners that the Company, i. e., the petitioner No. 1, was the owner of the said premises and as such, the said order should have been served on the said owner and not on Mr. B. K. Shrestha and the service in the instant case having not been made on the owner but on Mr. B. K. Shrestha, the same was irregular and improper under Sub-section (2) of Section 3 of the said Act, which clearly indicates that an order under Sub-section (1) of Section 3 shall be served on the landlord and where the same relates to premises let out to a tenant, also to the tenant. Since the said premises, according to the petitioners, was owned by the petitioner No. 1 Company, the said notice should have been served on them and the service of the said notice on Mr. B. K. Shrestha who was neither the landlord nor a tenant and as such, claimed to be wholly bad, illegal, invalid and that being the position, it was claimed no action whatsover should have been taken on the basis of the same.
6. The petitioners have further pointed out that from the said order itself it would clear that the forwarding note was issued on March 3, 1986 and as such, the same could not in any circumstances to be served prior to that date. They have also pointed out that in the said order the Collector concerned requested Mr. B. K. Shrestha to deliver possession of the said premises on March 3, 1986 at 4-45 p. m. and it would also be evident from the records of the case and the facts as disclosed that the representative of the Office of the Collector came to the office at 13, Lowdown Street, Calcutta at about 5-30 p. m., to serve the said order. As such, the said order was claimed to have been served long after the period as mentioned therein and so the entire action was further claimed to be mala fide. The service of the notice at 5-30 p. m. on Mr. B. K. Shrestha has of course been denied by the answering Respondents and the particulars of such denial would appear from the statements as would be indicated hereafter.
7. It was the further case of the petitioners that on March 3, 1986, at about 3-30 p. m., some persons also claiming themselves as the representatives of the Office of the Collector concerned, along with a number of police authorities went to the said premises and took forceable possession of the same by ousting the darwan and his family members and other employees of the petitioners Company. It has also been alleged that those persons with the help of police authorities ousted the darwan from his premises along with his family members including children and after taking forceable possession of the said premises, locked the same. It has been stated that at the time of taking such forceable possession, there were furniture, fixtures and other valuable articles of the petitioners in the said premises. It has been alleged by the petitioners that the action of the authorities concerned would establish that they were out to take possession of the said premises by any means whatsover. They have pointed out that the notice in question, was dated March 3, 1986 and the authorities concerned decided to take possession of the same on that date at 4-45. p. m. The fact that such decision to take possession of the said premises, even without giving any time to the owners to vacate the same and also to remove their furtiture, fixtures and other valuable articles, was contrary to Sub-section (1) of Section 4 of the said Act, which requires that the Collector may, by notice in writing, order the persons in occupation of the premises to vacate the same within a period of 10 days from the date of the service of the notice and in the instant case it would be clear from the records, that no such time was given to the petitioners to vacate the said premises and such being the position, the entire action was also illegal, mala fide arbitrary and absolutely without any jurisdiction and authority of law. The petitioners have also pointed out that although the total area of the land of the said premises is .39 acres and not .35 acreas as mentioned in the said notice and that would ample evidence that there was no application of mind prior to the issue of the same and such fact would also be evident from the fact that the real owner, i. e., the Company petitioner No. 1, was not served, but Mr. B. K. Shrestha who was not the actual owner, was served as the owner of the said premises.
8. The petitioners have further stated that the right to held and enjoy property is a cherished right and since the said order in the instant case, has deprived the actual owner of the said premises, such right, the same cannot stand and must be set-aside and that too. When no notice of hearing whatsover was served upon the owners of the said premises, it was further claimed that the said order as issued under the said Act could not be given effect to and the same should be deemed to be improper as the operation of the said Act which is temporary one, has not been duly extended. No notice having been duly served on the owners of the said premises, the requisition in question, as stated earlier, was claimed to be wholly illegal, invalid and inoperative and as such no action could be taken on the basis thereof. It was further restated by the petitioners that the time to vacate the said premises in terms of Section 4(1)(a) of the said Act, not having been duly given, the said notice was inoperative and was in clear violations of the provisions of the said Act. It has been claimed that the time to vacate a premises is required to be given mandatorily and without compliance with such requirements, the possession of any premises cannot be taken. Particulars of invalidity of the said notice, for non service on the real owner, i.e., the Company have also been indicated earlier.
9. The affidavit-in-opposition to the writ application was dated April 16, 1986 and the same was filed through Shri Sudhinda Nath Mukherjee, Additional Land Acquisition Officer, North 24-Parganas. He has alleged that the petitioner No. 2 Mrs. Sova Shrestha has not duly disclosed the names of the other Directors. It was big case that the record of rights in respect of the lands and the said premises were and are still standing in the name of Girendra Chandra Bandhapadhaya of 31-C, Shastitala Road, Calcutta-11 and the same premises, was earlier used for the purposes of the accommodation of Barasat-II Block Officer at a total monthly rent of Rs. 125/ and since the names of the Directors of the petitioner No. 1 have not been disclosed, the petition should be held to be defective. He has also stated that the total land of the R. S. Khatian No. 133 is only 0.33 decimal and has further stated that the petitioners have not disclosed whether their names have been mutated or not in respect of the said premises. He has stated that he has not been able to find out such mutation in the records of the Collector concerned. It was further case that after taking possession of the said premises, an inventory was prepared in the presence of an Executive Magistrate and his categorical case was also that the said notice was served on and received by one Shri T. K. Vichanathan at 4-45 p. m. on March 3, 1986 and not at 5-40 p. m. as alleged. He has further stated that at the time" of pre-requisition inspection, it came to the knowledge of the authorities that Mr. B. K. Shrestha was the owner of the said premises and according to him the petitioner No. 2 is the wife of the said Mr. Shrestha. On being asked, it was found that the deponent was not present at the time of the concerned pre-requisition inspection. He of course denied the submissions that the said notice was a motivated or mala fide one and according to him, possession of the said premises was taken at about 4-30 p. m. on March 3, 1986 by the Collector, North 24-Parganas and it took upto 4-30 p. m. to make the inventory, which has been disclosed. According to him, the fact of taking over possession and handing over the same to the representative of the Collector concerned was also completed by that time and he has further stated that the darwan who was in the said premises had left the same after handed over the keys to the Head Surveyor.
10. It has been stated by the said deponent that at the time of pre-requisition inspection it was found that except the darwan who was staying at the out house, no person was in occupation of the said premises and as such, the requisition in this case according to him, was made in accordance with law. He has further stated that from the writ petition also, it would be apparent that no one was residing in the premises at the time of the requisition. It was his specific case that Plot No. 396 having an area of 0.35 acres, have been taken possession of under the order and he has also indicated that there was no substance in the submissions of the petitioners on the invalidity of the said notice for not having the extension of the said Act extended as said has been extended upto March 31, 1986 by the Amending Act IV of 1986.
11. It was the further case of the deponent that the said premises has been requisitioned for the public purpose as would be apparent from the said notice itself viz. for confidential-office-cum-residence of the District Magistrate of the newly formed North 24-Parganas District, which came into existence on March 1, 1986. It has been stated that from September 1985 efforts were made for suitable premises at Barasat town for office and residential accommodation for officers, whose continuous presence and stay in the District Headquarters would be required for administration of the newly formed District and such being the position, the said order was admittedly issued for the interest of public service, which would mean and include a purpose which can be claimed to be a public purpose, it was the further case of the deponent that as such object of having necessary accommodation could not be achieved, the said order was passed on March 1, 1986 and that too for the purposes as mentioned above. He has also stated that as the District officers were very much busy on March 1, 1986, which was Saturday, for opening of the District, the notice was served on March 3, 1986, after complying with all the formalities, apart from the above, the deponent has stated that the verification of the writ petition was not proper.
12. The writ proceeding was disposed of on April 18, 1986 by Suhas Chandra Sen, J. and by His judgment and order, the lull particulars whereof would be indicated hereafter, the learned Judge had disposed of the proceedings, as indicated earlier, in favour of the writ petitioners.
13. Before the learned Judge, on behalf of the petitioners, the point of non service of the said notice upon the owner, i e., the Company was urged and it was further urged that the public purpose for which the said premises was requisitioned was not specifically stated in the notice. The answering Respondents, before the learned Trial Judge of course claimed that such mentioning of the specific purposes in the notice in question, was not necessary and the precise nature of the public purpose can be stated in the affidavit. The said point, the learned Trial Judge has not decided since he felt that it was not necessary for him to go into such question in the facts of the case. In fact, he has pointed out that the only question would be whether a prior notice was given under Section 4 of the said Act. He has recorded that on this point the petitioners urged that at least ten days notice should have been given and such compliance not having been there, the said notice should be quashed. The learned Trial Judge has recorded that the said premises was taken over within a few hours of the concerned service of notice and because of such shortness of time, the petitioners could not even remove their furniture. The Respondents before him submitted that the said premises was requisitioned under Sub-section (1) of Section 3 of the said Act which does not require any time to be given and the prescribed period of ten days notice is not necessary in case of requisition of vacant premises. On construction and interpretation of Sub-section (1) of Section 3 and Section 4 of the said Act and according to the learned Trial Judge, when there is no conflict between the Sections 3 and 4, he has come to the conclusion that after an order has been passed under Sub-section (1) of Section 3, further action may be necessary to be taken in connection with the requisition of premises before possession is taken and the person in occupation of the premises will have to be given a notice to vacate within a period of 10 days and the landlord or tenant as the case may be, will have to be required to remove the articles or furnitures belonging to them within a period of 15 days, which period may be extended upto 2 months. The learned Trial Judge has observed that admittedly, in this case, no notice has been served under Section 4(1)(a) or Section 4(1). Before him the answering Respondents and the said premises was vacant one and such being the position, there was no question of service of notice to vacate, before possession of the same was taken.
14. On the basis of the observations in the case of State of West Bengal v. Pulin Krishna Roy, and also those in the case of Sudhirabala Roy v. State of West Bengal, 1981(1) C.L.J. 29, the learned Trial Judge has observed that the points as indicated hereinbefore, were of no merit and he was further of the view that notice, under Section 4(1)(a) and Section 4(1)(aa) of the said Act were mandatory and required to be appropriately served, before possession could be lawfully taken.
15. While on the question of the argument that the said premises was unoccupied and therefore notice under Section 4 was not needed to be served, the learned Trial Judge has observed that such point has also no basis, more particularly when the said premises was a furnished one, there was a darwan in charge of the same and as such, he has also observed that it cannot be said that the premises was not occupied merely because of the owners of the same was not in actual physical possession of the same at the time of the service of the said notice. The learned Trial Judge has also indicated that the said premises was fully furnished and the darwan was in actual physical possession of the same, but unfortunately the Respondents have taken physical possession of the said premises with all the articles and furnitures and the darwan has been physically thrown out of occupation and such act or actions, in the opinion of the learned Trial Judge was a high-handed one and not warranted by the statute. In short, the learned Trial Judge has observed that the Respondents before him and acted in clear violation of the mandatory provisions of Section 4 of the said Act. He could not also agree with the submissions of the answering Respondents that the notice under Section 4(1)(a) was not necessary because at the time when the said premises was requisitioned under Section 3, the owner was not in actual physical possession of the same and only a caretaker was in charge of the said premises, The terms of Section 4(1)(a) of the sum Act and more particularly winch includes "the person in occupation of the premises" according to the learned Trial Judge would mean who is in possession either actually or physically or symbolically and according to him, occupation would not mean actual residence. He has also pointed out that a person may keep up and maintain a house property, where he may reside from time to time and the property cannot be said to De not in occupation if he temporarily resides elsewhere and the learned Trial Judge has further observed that such construction if, given that would lead to a dagerous consequences. The said Section, the learned Trial Judge has pointed out has not used the language "in actual occupation" or "in actual physical possession" and as such, according to him, there would be no necessity to give the word "occupation" a restricted meaning and such word in Section 4(1)(a), he has stated, cannot mean any uninterrupted or continuous occupation of a property. Such beign the position and since there has been no dispute that the property was fully furnished and no notice under Section 4(1)(a) has given to the petitioners to remove their articles and furnitures, the learned Trial Judge has stated that there has been a failure of the mandatory provisions of the said Act and there is also no explanation given by the Respondents, as to why such mandatory provisions were given a go by. With those observations and since the mandatory provisions of Section 4, of the said Act were not applied, the learned Trial Judge disposed of the proceedings with an order directing the Respondents to make and hand over and/or restore the possession of the said premises to the petitioners with all the fittings, furnitures and fixtures and other valuable articles.
16. From such determination, the present Appeal, as mentioned, hereinbefore, was presented on April 18, 1986.
17. Mr. Banerjee, appearing in support of the appeal, made inter alia amongst others, the submissions as were made by his clients viz the Respondents in the writ proceedings before the learned Single Judge, with reference to certain decided cases, the particulars whereof are indicated hereafter.
18. Before indicating the submissions as made, we think, we should indicate the Sections of the said Act and the provisions of the Rules viz West Bengal Premises Requisition and Control Rules, 1947 (hereinafter referred to as the said Rules) as framed under the said Act, to which reference was made by the parties. There is no doubt that the operation of the said Act has been extended upto March 31, 1987 by West Bengal Act IV of 1986. Mr. Banerjee referred to the Sections of the said Act and the Rules as quoted herein below.
Section 2(c) : "Landlord" means any person who for the time being is receiving, or is entitled to receive, the rent of any premises whether on his own account or on account or on behalf or for the benefit, of any other person, or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were left to a tenant and includes a legal representative, as defined in the Code of Civil Procedure, 1908, (of the landlord) ;
Section 2(d) : "persons interested" means any person claiming an interest in compensation payable on account of requisition of any premises under this Act;
Section 2(e) : "premises" means any building or part of a building or any hut or part of a hut and includes the garden, grounds and out-houses (if any) apertaining to such building or part of a building or (part of a hut and also includes a room or rooms in an hotel, boarding house or lodging house ;
Section 2(f) : "prescribed" means prescribed by rules made under this Act;
Section 2(ff) : "public purpose" includes providing residential accommodation for employees of the State Government where the provision of such accommodation is, in the opinion of the State Government, necessary in the interest of public service;
Section 2(g) : -- -- -- -- -- --
Section 3(1) : 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.
(2) An order under Sub-section (1) shall be served in such manner as may be prescribed on the landlord, and where it relates to premises let out to a tenant, also on such tenant.
(3) The State Government may, with a view to requisitioning any premises under Sub-section (1), by order :
(a) require any persons to furnish to such authority as may be specified in the order, such information in his possession relating to the premises as may be so specified ;
(b) direct that until the expiry of such period not exceeding three months as may be specified in the order, the landlord, the tenant or any other person in occupation of the premises shall not let out the premises without the permission of the State Government or such other authority as may be specified in the order.
(4) 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 this Act (and to take possession of the premises requisitioned).
(5) -- -- -- -- -- -- -- -- (6) -- -- -- -- -- -- -- --
4(1) Where any premises are requisitioned under this Act the Collector may be notice in writing--
(a) order the (person in occupation of the premises, if any, to vacate the premises within a period of ten days from the service of the notice ;
(aa) order the landlord or the tenant, as the case may be, to remove the articles belonging to him, if any, and, where the premises are requisitioned without any furniture therein, such furniture, within a period of fifteen days from the service of the notice :
Provided that the Collector may, for reasons to be recorded in writing, extend the said period up to two months ;
(b) order the landlord to execute such repaire as may be specified in the notice within such time as may be specified therein ;
(c) if a landlord fails to execute any repairs in pursuance of an order under Clause (b) the Collector may cause the repairs specified in the order to be executed at the expence of the landlord and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the compensation payable.
(2) Where any person fails to comply with an order under Clause (aa) of Sub-section (1) directing any furniture or other articles to be removed, the Collector may cause such furniture or other articles to be removed and to be stored or sold by public auction in such manner as the Collector may think fit at the cost and risk of such person :
Provided that no furniture or other articles shall be sold by public auction in pursuance of the provisions of this Sub-section without the previous sanction of the State Government or such other authority as may be empowered in this behalf by the State Government.
Section 6. -- -- -- -- -- -- --
6. When (any premises have been requisitioned under Sub-section (1) of Section 3, the State Government) (may use or deal with them, for such public purpose and in such manner as may appear to it to be expedient) Rule 3. (1) Save as provided in Sub-rule (2), an order under Sub-section (1) or Sub-section (3) of Section 3 shall be served by tendering and delivering a copy thereof to the person on whom the order as to be served.
(2) Where--
(a) the person to whom a copy of the order to be served is tendered under Sub-rule (1) refuses to accept delivery thereof, the order may be served by fixing a copy thereof on the outer door or such conspicuous part of the premises in which such person ordinarily resides or carries on business or by sending the same by registered post with acknowledgement due or in any other manner as enumerated in Clause (b) of this sub-rule.
(b) the person on whom the order is to be served cannot be found or is not readily traceable and the order cannot be otherwise served without undue delay, the order may be served on any adult male member of the family of such person residing with him, and, if no such adult male member can be found or if such member refuses to accept delivery thereof, the order may be served by fixing a copy thereof on the outer door or some conspicuous part of the house in which the person therein named ordinarily dwells or carries on business or by publishing the order in the Calcutta Gazette, and if practicable by fixing a copy thereof on the outer door or some conspicuous part of the premises to which it relates or by fixing a copy thereof on the notice board in the office of the Collector and if practicable also on the outer door or some conspicuous part of the premises to which it relates, as the Collector may deem fit in the circumstances of the case or
(c) the ownership of the premises is in dispute, the order may be served by publishing it in the Calcutta Gazette, and by fixing a copy thereof on the outer door or some conspicuous part of the premises to which it relates or by fixing a copy thereof on notice board in the office of the Collector, and if practicable also on the outer door or some conspicuous part of the premises to which it relates, as the Collector may deem fit in the circumstances of the case.
4. The notices referred to in Sub-section (1) of Section 10 shall be in Form III appended to these rules and shall be served in the same manner mutatis mutandis as is provided in Rule 3 for the service of orders under Section 3, and after placing the above provisions, Mr. Banerjee placed the notification in question and pointed out that in this proceeding, we are to find out first, if the service of the notification, was good and sufficient and according to him, the provisions of Section 3(2) of the said Act were neither condition precedent nor mandatory, It was his further submission that the formation of opinion regarding the existence of "public purpose" is neither justiciable nor specific "public purpose" is required to be mentioned in the order under Section 8(1) of the said Act and such an order, when passed, made or issued, will be final under Section 3(4) of the said Act.
19. In support of his submissions that a notification, when made or; issued will be final and the formation of opinion with regard to the "public purpose" will be final and not justiceable and furthermore, the notice need not specify the public purpose, Mr. Banerjee, firstly referred to the case of A.C. Mohamed and Anr. v. Sailendra Nath Mitra, , where a Division Bench of this Court has indicated that the decision of the Government that the premises are wanted for public purposes is final. If the order made is a colourable exercise of the power given by the Act, the Court has jurisdiction to set aside the order. All that the Court can do is to see that the power which it claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that the power is exercised in good faith. Apart from that, the Courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction. Mr. Banerjee secondly referred to the determinations in the case of Pandit Srinivas Khedwal v. The State of West Bengal, 93 C.L.J. 106, where another Division Bench of this Court, apart from observing that the burden of proving whether an order of requisition in mala fide or not rests on the party alleging it, has also observed that since existence of a public purpose depends entirely on the satisfaction of the Government and is not justiciable, mere omission to specify the public purpose in the requisition order does not necessarily make the order invalid, more so when the party may obtain the necessary information by appropriate means. A mere statement in the order that the premises are needed or are likely to be needed for a public purpose is sufficient. Then and thirdly, reliance was placed by Mr. Banerjee to the Division Bench Judgment in the case of Chayarani Mukherjee v. Asst. Secretary. Land & Land Revenue Department, Requisition Bench, State of West Bengal and Ors., 68 C.L.J. 826 which has observed amongst others that on a purely textural interpretation Section 3 of the West Bengal Premises Requisition & Control (Temporary) Provisions Act, 1947 may mean that the subjective satisfaction of the State Government as to the existence of the public purpose is final and not justiciable. On the other hand, in the background of constitutional guarantee that a law cannot provide for acquisition or requisition save for a public purpose, the section must be construed to mean that the opinion of the government is final as to the need only, but it is not final as to the existence of the public purpose. Any law which makes the subjective satisfaction of the Government with regard to the existence of the public purpose final would indirectly enable the Government to make requisition for private purpose and would be violative of the constitutional guarantee.
20. On a reference to the said order, Mr. Banerjee indicated that the said premises along with furnitures was requisitioned and he also indicated that a list of furniture were duly inventorised. He further contended that since the said premises was not in actual use and the same along with furnitures and fittings was requisitioned to there was no need for serving a notice under Section 4(1)(a) of the said Act or no useful purpose would be served by such since Section 4 of the said Act according to Mr. Banerjee was really a follow up action after the notification under Section 3 and as stated earlier such action was not necessary in the facts of this case. In support of such submissions Mr. Banerjee referred to the case of Administratix in the Estate of late N.C. Goenka v. State of West Bengal and Ors., 1976 (2) C.L.J. 162, where it has been indicated amongst others that the provision of Section 4 of the Act are in the nature of follow actions which are to be taken after the requisition order is made. The case under consideration has also observed that although Section 3 of the said Act speaks of requisition of premises "with or without any furniture", it is not necessary to state that in the order of requisition itself. It may be done in a subsequent stage. In fact, on the basis of the above observations, the bona fide of the order of requisition or the purpose behind the same was sought to be established during the course of hearing of this appeal.
21. A point arose whether the requisition in question, was due, valid and proper, since ten days time as required under Section 4(1)(a) of the said Act or the notice in terms of Section 4(1)(aa) was not given to the petitioners or the person in occupation, to remove the belongings in the said premises and to vacate the same. Mr. Banerjee contended that the said premises was not occupied at the relevant time, so there was no need or any necessity to afford such opportunity to the petitioners and further contended, on the basis of the determinations in the case of Sultan Ahmed and Ors. v. Dutt Working for Gain as Deputy Secretary to the Government of West Bengal and Ors., (1963) C.L.J. 150 that the opportunity within ten days as required to be given or may be given anytime within ten days. In fact, the case as cited above has determined that the words "within a period of 10 days" in Section 4 of the said Act mean that the State can call upon the persons in occupation of the premises to vacate at any time within a period of 10 days. The case as indicated above also supported the submissions of Mr. Banerjee on the finality of a requisition order and has further laid down that a requisition order can be set aside if the same was issued in colourable exercise of power or Was a mala fide one and if taken recourse to for any illegitimate purpose. The case has further decided that it will be unreasonable to call upon the petitioners to deliver posession or to vacate the premises within the time stipulated in the order under Section 4 of the Act, when the person in occupation had no right to remain in the premises. In this appeal, it was an admitted fact that no such notice as indicated above, was served and the said order only indicated that "Lands buildings with furnitures" and not the fittings were sought to be requisitioned. It should also be noted that the said order was dated March 1, 1986 and the same was sought to be served on one Mr. B. K. Shrestha, claiming him to be the owner on March 3, 1986 and the petitioners moved this Court on March 18, 1986.
22. As indicated earlier, while making the determinations and more particularly on the question of service and the effect of non service, the learned Trial Judge has referred to the case of Smt. Sudhira Bala Roy and Ors. v. State of West Bengal and Ors. (supra). The allegation in that case was that no order of requisition under Section 3(1) of the West Bengal Act 5 of 1947 was served upon the appellants. It also appears that the affidavit-in-opposition has filed by the respondents (State) traversing the allegation of non service of the Order of requisition and also about the non-service of any order under Clause (a) or Clause (aa) of Section 4(1) of the said Act. The respondent however produced before the Court the case records in order to show service of the order of requisition under Section 3(1) and in such circumstances it has been held that, mere prosecution of the records maintained of the respondents was not enough to disprove the allegation of non-service of the order of requisition. As the allegation of non-service of the Requisition Order had not been controverted, there was no dispute about the non-service of the Order of requisition. In the circumstances, it must be taken that the Order of requisition had not been served upon the appellants and consequently, the respondents acted illegally in disposses since the appellants from the disputed premises. It was not disputed in that case that no order of the Collector under Clause (a) or Clause (aa) of Section 4(1) of the Act was served upon the appellants. It is contended by the appellants that the provisions of Clauses (a) and (aa) are mandatory and the respondents had no authority to take possession of the requisitioned premises without serving an order under Clause (a) or Clause (aa) affording the appellants the prescribed period of time to vacate. It is further urged that as the respondents had not served any such order or allowed the appellants the requisite time as mentioned in Clause (a) or Clause (aa) to vacate the premises, the taking of possession of the premises in question by the respondents with police help was highly unjustified, arbitrary and illegal and the respondents should be directed to restore possession of the premises to the appellants forthwith and in such circumstances it has been observed that normally, the word 'may' used in a statute should be construed as discretionary, but in the context of the statutory provision in which the word finds place, it may become necessary to interpret it as mandatory and there can be no doubt that in interpreting the Sub-section of a Section of an Act providing for the same matter, all the Sub-sections should be construed as a whole as parts of the integral whole. But where the two Sub-sections of a Section of a statute provide for different matters, normally there is no need or necessity for construing the Sub-sections together. In the instant case, the subject-matter of Clauses (a) and (aa) of Section 4(1) are completely different from that of Clauses (b) and (c) of that Sub-section and, therefore, it is not necessary to read all the clauses together as parts of the integral whole, apart from holding that whether or not any statute relating to the requisition of any premises provides any time to vacate the requisitioned premises by any person in occupation of the same, a reasonable time must be given to him to vacate by a prior notice in writing. So, where a premises is requisitioned for a public purpose other than for the purpose of the person in occupation of the premises, or the landlord or tenant of such premises, the word 'may' in Section 4(1) of the Act should be construed as 'shall'. The provisions of Clauses (a) and (aa) of Section 4(1) of the Act have conferred a power on the Collector to require the person in occupation of the premises or the landlord or the tenant of such premises to vacate the premises within a certain period. This power has been conferred upon the Collector undoubtedly for the benefit of such -persons and it must be so exercised. It was also indicated that, as the possession of the requisitioned premises, it appears, had been forcibly taken from the appellants without serving on them any prior notice in writing by the Collector under Clause (a) or Clause (aa) of Section 4(1) of the Act, the respondents had acted illegally and in breach of the provisions of Clauses (a) and (aa) and also in disregard of the rules of natural justice, in taking such possession of the requisitioned premises from the appellants. The respondents are, therefore, liable to forthwith restore possession of the requisitioned premises to the appellants. It was also indicated that, as Mr. Banerjee pointed out that the determination in that case would be distinguishable on facts as their possession was taken forceably and not on due service as in his case. In support of his contentions on, the question whether an order of requisition should explicitly indicate the public purpose and more and full particulars of the submissions as indicated hereinbefore, Mr. Banerjee made a further reference to the case of H.D. Vera v. State of Maharashtra and Ors., , which was a case under the provisions of Bombay Land Requisition Act, 1948. In that case, it has been observed that it is not necessary that the order of requisition must explicitly set out public purpose for which it is made. The only requirement of the law is that the requisitioning must be made for a public purpose and so long as there is a public purpose for which an order of requisition is made, it would be valid irrespective of whether such public purpose is recited in the order of requisition or not. However, the State Government would have to show that the order of requisition was made for a public purpose and the necessary facts showing the public purpose for which the order of requisition was made would have to be established by the State Government to the satisfaction of the Court. In that case, the order of requisition did not set out the public purpose for which it was, made neither any material was placed before the court to show what was the public purpose for which the order was made. Moreover, the allottee to whom the requisitioned property was allotted was neither a Government servant nor a homeless person and the same was held and found to. be made for public purpose. Mr. Banerjee contended by saying that when the notice under Section 3(1) was final and conclusive and not justiceable, so no further notice was required to be given in this case as the requisition was in respect of all furnitures and fixtures. It should be noted that admittedly notice under Section 4(1) of the said Act was not served.
23. Mr. Mukherjee appearing for the Respondent writ petitioners claimed and contended that since the writ petitioner No. 1, i.e. the Company at all material times was and still is the owner of the said premises, possession of the same under or in terms of the said Act could not be taken even on the basis of the said order/notice, as admittedly the notice in question was sought to be served on one Mr. B. K. Shrestha, claiming him to be the owner although and in fact he was not so Mr. Mukherjee pointed out on a reference to the said order/notice that even the said was not addressed to the Company. He referred to the definition of landlord as in Section 2(c) of the said Act and claimed that even on the basis thereof the Company was and should be the owner of the said premises in the facts of this case and as such, according to him the said order/notice was required to be served on them and that too in terms of Rule 3(1) of the said Rules, which prescribed the mariner of service and also in the form as indicated in Rule 4.
24. Mr. Mukherjee indicated that the onus to prove and establish due service of the notice/order was on the appellant, but they have failed to discharge such onus. Mr. Mukherjee contended that the possession of the said premises which/was with the Company, could not be authorisedly taken in the manner as was sought to be done in this case and that too without the due service of notice. In support of his submissions or for supplanting and supplementing them, he referred to the chapter on "the Eminent Domain" from the Treatise on the Constitutional Limitations by Thomas M. Cooley and more particularly to the indications that "private property can only be taken pursuant to law ; but a legislative act declaring the necessity is for this purpose" the law of the land", and no further adjudication or finding is essential. But here is to be kept in view that general, as well as reasonable and just rule, that whenever in pursuance of law the property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law which are made for his protection and benefit. These provisions must be regarded as in the nature of condition precedent which must not only be complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must affirmatively show such compliance. Mr. Mukherjee also contended that the attempt to deprive the owner of the said premises viz the Company to possesses the same, was also contrary to Article 300A as incorporated by the Constitution (Forty fourth Amendment) Act 1978 and which postulates that no person shall be deprived of his property save by authority of law, which provision, according to Mr. Mukherjee has also adopted the rules as indicated in Cooley's Treatise on Constitutional Limitations. He, in short contended that since possession of the said premises was sought to be taken without an appropriate service of the said notice/order on the owner of the same viz. the Company, the entire process of the requisition was a nulity and could not be given effect to. It was further contended by Mr. Mukherjee that taking of possession as Indicated in Section 4(1)(a) of the said Act, even if consequential, strict compliance of the requirements of the section was necessary and required to be made, as the benefit of the subject was sought to be taken away.
25. A question arose on the pleadings and submissions as made as to what type of possession, actual symbolical, which the owner is required to have to get the benefit a Section 4(1)(a) of the said Act. Mr. Mukherjee submitted that such possession will not be the actual physical possession and the same may be symbolical too. Such submissions were sought to be supported by Mr. Mukherjee on a reference to the provisions of the Transfer of Property Act and also on a reference to the provisions of West Bengal Land (Requisition and Acquisition) Act 1948 and the Rules framed thereunder and more particularly to the serving process as required. Mr. Mukherjee, in fact referred to the determinations in the case of Pramatha Nath Mukherjee and Ors. v. State of West Bengal and Ors., 70 C.W.N. 503. In that case, it appeared that the printed form which was signed by the Collector reproduced all the alternative purposes for which the relevant statute enabled in order to be made and the Collector did not consider it necessary to determine which of these alternatives was applicable to the case before him, nobody can ascertain whether the requisition is being ordered for the purpose of drainage, irrigation, road construction or transport. It is, therefore, clear that the Collector did not apply his mind while issuing the impugned order, apart from indicating that the order under Section 3 of the Act must give sufficient particulars so as to identify the land to which the order relates, since the impugned order does not do so, it is invalid and that Rule 3(1) requires endorsement of the copy of the Order by a duly authorised person for a proper service of the Order upon the person; affected, because if a copy were served without any endorsement by a proper person, the person affected might not be satisfied about its authority, for the very reason that a copy need not bear personal signature of any person. It was also and the specific submissions of Mr. Mukherjee that even if Mr. B. K. Shresta was claimed to be the owner, there was in fact no due and proper service of the said order notice, as such service was not effected on the said Mr. B, K. Shresta, but the same was effected on and received by one Mr. T. K. Viswanathan, an employee of the associate Companies of the petitioners.
26. While on the question of strict compliance under the said Act or the need and necessity of the same, further reference was made by Mr. , Mukherjee, firstly to the case of Dineshaw Itelia v. State of Hyderabad, A.I.R. 1955 Hyderabad 203, where a Division Bench of that High Court, while dealing with the acquisition proceeding under the Hyderabad Land Acquisition Act has observed that when statutory rights abridging the right of ownership to property have been conferred upon the Government, the conditions prescribed by the statute for the exercise of such rights must be strictly fulfilled. If this is not done Courts will afford relief to persons who are aggrieved by the non-compliance or nominal compliance with the provisions of the statute and secondly, to the case of Mrs. Ambujam Menon and Ors. v. State of Kerala and Ors., , where a Division Bench of that High Court, while dealing with compulsory acquisition of land under the provisions of the Land Acquisition Act, 1894, has indicated that an owner of property can claim even a higher than market price for his property ; and simply because he is willing to sell his property and because he will get proper price for his property if acquired, his property cannot be compulsorily acquired. Compulsory acquisition can be effected only in accordance with the acquisition law because it is an inroad into a citizen's right to own property. Such inroad can be made only in strict compliance with the law authorising it and thereafter, thirdly to the case of Narinderjit Singh v. The State of U.P. and Ors., A.I.R. 1972 S.C. 552, where the effect of non-compliance with the mandatory provisions of Section 4(1) of the Land Acquisition Act, 1.894 was considered and it has been observed that where the Collector fails to cause public notice of the substance of the notification to be given at convenient places in the locality where the land sought to be acquired is situated, the whole acquisition proceedings are vitiated, apart from holding that the mere fact that the applicability of the provisions of Section 5A have been dispensed with under Section 17(4) of the Act at the time the notification under Section 4(1) was issued does not authorise the dispensing with the provisions of Section 4(1). The provisions of Section 4(1) cannot be held to be mandatory in one situation and directory between those proceedings in which in exercise of the power under Section 17(4) the appropriate Government directs that the provisions of Section 5A shall not apply and where such a direction has not been made dispensing with the applicability of Section 5A. It was then and also pointed out by Mr. Mukherjee that Sub-section (2) of Section 3 of the said Act makes provisions for service of an order under Section 3(1). Such service according to him was not duly done in this case and the Appellants contended otherwise. It was his submissions that in such case the question whether the procedure as to the publication has been complied with is to be considered in the context of all the facts and circumstances of the case, as observed in the case of Prem Jivan Jaitha v. State of West Bengal and Ors., , in which case, the Court was considering the effect of non-compliance with the mandatory provisions of the Land Acquisition Act, 1894 and has also observed that Section 4(1) is a mandatory provisions and, unless notice is given in accordance with it the entire acquisition proceedings are viatiated. The purpose behind the notice required by the section is that interested persons should know that the land is being acquired so as to enable them to prefer objections under Section 5A which confers a valuable right. Mr. Mukherjee also pointed out that even though under the provisions of the West Bengal Land Requisition and Acquisition Act, 1948 (Act 2 of 1948), there is question of providing for opportunity of being heard, under the provisions of the said Act, opportunity of being heard is required to be given and more particularly in cases of this nature. It was also contended by him that even after notice, a hearing thereafter in a case of the present nature was also mandatory and necessary. He claimed after playing the relevant records! and pleadings that in fact the 45 minutes time which given for handing over possession of the said premises at Barasat after service of notice here at Calcutta, was not only too short time, but such time was unreasonable and that being the position, the entire proceeding should be deemed to be mala fide and initiated in colourable exercise of power, as admittedly within such a short time the petitioner were not in a position either to make any representation or any hearing could be given to them.
28. That a hearing in this case was necessary to be given and was mandatorily required, was further sought to be established by Mr. Mukherjee on the basis of the determinations in the case of Madan Gopal Agarwal v. District Magistrate, Allahabad and Ors., , or on the analogy of that decision, were while dealing with the provisions of Section 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947 of if under the Scheme or that section, the service of notice and a hearing to the affected person will be necessary and what should be the effect of non-compliance, the Supreme Court has indicated that it is true that Section 3 of the Temporary Regulation Act, 1947, does not contain express provision for notice and hearing before making of the requisitioning order. Considering the object of the provision however, such a provision is to be read there by necessary implication, apart from holding that the right to hold and enjoy the property is a cherished right and since requisition of the same deprives the owner of the right to hold and enjoy it as he likes, it is difficult to assume that the legislature would have intended to deprive the owner of possession of this cherished right without notice and hearing and that considering the fact that before passing an order the District Magistrate has to take into consideration certain objective facts coupled with the fact that he is constituted a plenary authority in that there is neither an appeal nor a revision provided for against the order, it seems reasonable to assume that the legislature intended an order under Section 3 to be made after notice and hearing, so that no unfairness is done to anyone. The dimensions of the hearing will very according to the circumstances of each case--the berest minimum being a fair hearing.
29. To establish the meaning of the terms "landlord and tenant" under the said Act and if the provisions of Section 3(2) of the Act are mandatory, apart from the fact that what should be the meaning of the term "may" as mentioned in Section 4(1) and what should be the period of notice under Sections 4(1)(a) and (aa), reference was made by Mr. Mukherjee to the case of State of West Bengal and Ors. v. Pulin Krishna Roy Estate (P) Ltd. and Anr., , where, it has been observed that the expression 'landlord and tenant' as used in Section 3(2) do not refer to the superior landlord or the tenant of the first degree but the tenant in occupation of the premises sought to be requisitioned and his immediate landlord, who are directly affected by an order of requisition made under Section 3(1) and under Section 3(2) service of the order of requisition made under Section 3(1) both on the landlord and on the tenant, if the property is let out to tenant, is mandatory. Non--compliance with this mandatory provision makes all subsequent proceedings and actions taken under the order of requisition wholly unauthorised illegal and bad, apart from holding that an order of requisition could be given effect to only by directing the person in occupation to vacate the property and if there by any furniture or articles to remove the same. This can only be done by making an order under Section 4(1) and (aa) and by serving a notice on him under the said provisions. Thus although the expression "may" has been used in Section 4(1) the same cannot be mean "shall" or "must" and the provisions of Section 4(1) are, therefore, mandatory and not directory and that the contention that the period of ten days for vacating the premises as provided in Clause (a) of Section 4(1) or the period of fifteen days for removing the articles and furniture as contained in Clause (aa) of Section 4(1) were the outer limits of the notice and such notice could be shorter than ten days or fifteen days as the case might be, cannot be accepted. The said period is the maximum time given, to the occupier or the landlord as the case may be although they might vacate or remove the furniture and articles within a shorter period as well, but that is an option given to the occupier or the landlord as the case might be and not a right given to the Collector. If the intention of the legislative was that the Collector could in his direction abridge the said periods then the provision would nave been that the Collector may be notice in writing ; (a) order the person in occupation to vacate the premises within such period not exceeding ten days from the service of the order and (aa) order the landlord or the tenant as the case may be to remove the furniture or other articles, if any, lying therein, within such period not exceeding fifteen days from the service of the notice. Elizabeth Stock v. Secretary Land Revenue Dept., Govt. of West Bengal. While on the points, Mr. Mukherjee also made a reference to the case of Smt. Sudhira Bala Roy and Ors. v. State of West Bengal and Ors. (supra), which case has also been relied on and referred to by the learned Trial Judge and where it has been indicated that in interpreting the Sub-section of a Section of an Act providing for the same matter, all the Sub-sections should be construed as a whole, as parts of the integral whole. But where the two Sub-sections of a Section of a statute provide for different matters, normally there, is no need or necessity for construing the Sub-sections together. In the instant case, the subject-matter of Clauses (a) and (aa) of Sub-section and, therefore, it is not necessary to read all the clauses together as parts of the integral whole and so far as Clauses (a) and (aa) of Section 4(1) are concerned, the construction of the word "may" would depend on as to who is in occupation of the premises at the time the order of resulution is made under Section 8(1) of the Act. The person in occupation of the premises under Clause (a) and the tenant under Clause (aa) may be a Government Officer or a Government department for the benefit of whom the premises is being requisitioned. In such a case, it is absurd to think and that the Collector would make an order on the Government Officer or the Government Department to vacate the requisitioned premises. If the word "may" in Section 4(1) is construed as mandatory in all cases, it will lead to an anomelous position, namely, even where the premises is requisitioned for the purpose of a Government Officer or the Government itself, already in occupation of the premises, the Collector will have to serve an order on such officer or the Government, so the case may be, to vacate the premises. Obviously, therefore, the Legislature in its wisdom has used the word "may", so that in such case the Collector is not to issue and serve an order to vacate. In other case, however, when the premises is requisitioned for a public purpose other than for the purpose of a person in occupation of the premises or the tenant or the landlord of the same, the position would be different, apart from observing that where a premises is requisitioned for a public purpose other than for the purpose of the person in occupation of the premises, or the landlord or tenant of such premises the word "may" in Section 4(1) of the Act should be construed as "shall". This is also consistent with the public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislator of the conditions upon which they are entitled to call for its exercise that power ought to be exercised and the court will require it to be exercised. The provisions of Clauses (a) and (aa) of Section 4(1) of the Act have conferred a power on the Collector to require the person in occupation of the premises or the landlord or tenant of such premises to vacate the premises within a certain period. The power has been conferred on the Collector undoubtedly for the benefit of such persons and it must be exercised. In the facts of that case, it has also been indicated that the order of requisition had not been served upon the landlords, as mere production of the records maintained by the Respondents was not sufficient to disprove the allegations of non-service, and as such, dispossession of lands from the suit premises was illegal, apart from indicating further that the word "may" should normally be construed as discretionery but in the context in which it finds place, it may become necessary to interpreat it as mandatory.
30. In reply, Mr. Banerjee pointed out that under Section 4(1)(a) or (aa), the person in occupation, if any, will not only include the owner but also a trespasser and to establish such submissions reference was made by him to the case of Jiwanit Kumar Paraki v. First Land Acquisition Collector, Calcutta and Ors., , where while dealing with Section 3 of the said Act and distinction between Requisition and Acquisition, it has been observed that the State has the power both of requisition as well as acquisition, subject to one condition, i.e., the property acquired or requisitioned must be for public purpose. The two concepts are different; in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requisitioning authority. One is the taking over of the title and the other is the taking over of the possession. Normally the expression 'requisition' is taking possession of the property for a limited period in contradistinction to 'acquisition'. This popular meaning has to be kept in mind in judging whether in a particular case, there has been in fact any abuse of the power.
31. On the basis of the determination as cited at the Bar, there would be no doubt or any difficulty in holding that the formation of opinion about the "public purpose" or the existence thereof, would ordinarily be final and the same would depend upon the subjective satisfaction of the State Government and not justiceable, except in cases where the necessary power to form such opinion is exercised, in a colourable and mala fide manner. In case, such colourable or mala fide exercise of power is established, in the matter of the necessary formation of opinion with regard to "public purpose" or the existence thereof, the Courts will not be denuded of their power to interfere. It should also be noted that the obligation to establish such use of power would depend upon the party alleging such use and exercise of power and also to establish the same beyond any reasonable doubt. It cannot also be denied that mere omission to state and indicate the specific "public purpose" would not make the order bad, void and illegal. In the facts of the case and more particularly when, it was established in the original proceeding, on the basis of the subsequent statements as made, that the said premises was required for the accommodation and office purposes of the learned District Magistrate concerned, it cannot be doubted that the idea behind the requisition in question, was nothing but for a "public purpose". Such subsequent disclosure of "public purpose", in our view, would also be possible and permissible in terms of the determination in the case of Administrative in the Estate of late A.C. Goenka v. State of West Bengal and Ors. (supra). Thus, we shall have to be satisfied, if any exceptional circumstances amongst others, as indicated hereinbefore, were established and satisfied, apart from the fact, whether the said order was duly served.
32. Admittedly, the said premises was sought to be requisitioned with furnitures, on service of notice on one Mr. B. K. Shrestha, describing as the owner and such service was sought to be made at Calcutta, with directions to give up possession of the same at Barasat, according to the petitioner within a time, which was too short and that being the position, the entire action was claimed to be mala fide. We have indicated earlier, the respective claims and counter claims over the time of service of notice at Calcutta. We feel that the allegations regarding the shortness and the claims and counter claims as indicated hereinbefore, cannot be conveniently disposed of, decided and determined in a proceeding arising out of an application under Article 226 of the Constitution, as the same would require and involve enquiries into disputed questions of facts.
33. From the inventory as made and as disclosed by the appellants, it appeared that there were furnitures, fixtures, fittings and other belongings of the petitioners in the said premises and the possession of them, including the said premises, was admittedly taken from the Darwan of the petitioners. A point arose as to whether a notice under Sections 4(1)(a) or (aa) of the said Act, as the case may be, was required to be served. Mr. Banerjee contended that since the said premises was requisitioned along with furnitures and the owners were not in actual physical posses-ion of the same and were not actually using the said premises, there was no need for effecting service of notice under Sections 4(1)(a) and (aa) and in fact, no useful purpose would be served by such service or the same was necessary as according to him, Section 4 of the said Act, is nothing but a follow up action after the notification under Section 3, which notification again, as indicated earlier, should be deemed to be conclusive and not justiceable. Section 4(1)(a) speaks of ten days notice and on the basis of the determination in Sultan Ahmed's case (supra), such notice affording the necessary opportunity to the person in occupation may be given at any time within ten days and it is not necessary that clear ten days notice will have to be given. Same construction will also be applicable in respect of the time for service of notice as required under Section 4(1)(aa) of the said Act. In this case no notice under Sections 4(1)(a) and (aa) of the said Act was either issued to or served, on the petitioners, giving them thereby, not only the opportunity to vacate the said premises but also to remove their belongings from the same, which was admittedly sought to be requisitioned along with furnitures and from the inventory as made and disclosed, it appeared that, apart from possessing the said premises, the petitioners, in addition to the furnitures, had other belongings amongst others like ceiling fans and telephone and such being the position, the submissions of Mr. Banerjee that no notice under Sections 4(1)(a) and (aa) of the said Act, as the case may be, was necessary or required to be served, since the said premises was requisitioned with furnitures, loses all force and would be of no substance. In fact, Mr. Banerjee in his usual fairness stated that ceiling fans and telephone would not come within the meaning of the term furnitures. We feel that when the petitioners were in possession of the said premises and there were admittedly other belongings of the petitioners other than the furnitures, they were entitled to notices under Sections 4(1)(a) and (aa) of the said Act and more particularly when, for the reasons as would be indicated hereafter, we are of the view that the petitioners were possessing the said premises on the date of the requisition.
34. The petitioners in this case, even though were not physically present in the said premises, were in fact possessing the same through their agent viz. the Burdwan and also by keeping their belongings and that being the position, they must be deemed to be in symbolical possession of the said, premises and as such, were entitled to the notice under Section 4(1)(a) and also a notice under Section 4(1)(aa) in the facts and circumstances as indicated hereinbefore. We feel that for the purpose of entitlement of notices under Sections 4(1)(a) or 4(1)(aa) of the said Act, actual physical possession is not necessary and a person, who has symbolical possession as in this case, would also be entitled to the necessary notice and such notice, not having been admittedly served on the owners, the requisition in question must be held to be unjustified and without jurisdiction, apart from being void. As such, possession of the said premises, as was sought to be taken, was unauthorised and without jurisdiction. The terms "person in occupation of the premises" as used in Section 4(1)(a) of the said Act, agreeing with the learned Trial Judge, we hold, would not mean actual residence or staying in the premises in question and the word "occupation" in Section 4(1)(a), would not also mean uniterrupted and continuous occupation of the property.
35. Apart from the above, it appeared to us from the registered deed as produced and disclosed in this appeal, that the petitioner No. 1, i. e., the Company was the owner of the said premises and not Mr. B. K. Shrestha who was sought to be served as the owner and as such also, it must be held that the requisition order, was not duly served. Let the Xerox copy of the registered deed dated 16th February 1976, as produced, be kept in the record. It should further be noted that the Xerox copy of the deed as mentioned above, was produced along with the original of the same. In the facts of the case and in terms of Rule 3(1) of the said Rules, the said notice/order was required to be served on the owner of the said premises, i. e., the Company and such service not having been, made the provisions of the said Rule have also been violated.
36. The petitioners, we feel, at all materials times had and still have a right and subsisting interest in the said premises and as such, they could, if at all, be dispossessed on due service of notice and on fulfilment of the mandatory provisions of the said Act and sine there has not been such compliance, they are entitled to have the said order set aside and quashed, more particularly when, the appellants have not been able to discharge the onus, which lay on them to establish that there was due, valid and legal service of the notices on the owners, i. e., the petitioner Company. The possession of the said premises could only be taken and the right of the petitioners to possess the same could be interfered with or taken away in due process of law and satisfaction of the conditions necessary. But in this case, the appellants, as indicated earlier, have failed to establish their cause and so the petitioners cannot be deprived of their property and if necessary or if so advised, the appellants can proceed afresh in the matter and take necessary steps in accordance with law. We are also of the view that since the said Act makes provisions for deprivation of property, the terms of the same and more particularly of Section 4, should be deemed to be mandatory and as such, should be strictly complied with and it is needless to point out that no owner can be deprived of his property without the due process of law.
37. For the reasons as indicated above, we uphold the determinations as made by the learned Trial Judge and accordingly, this appeal is dismissed. There will be no order as to costs.
38. The prayer for maintenance of status quo is refused.
39. It appears that in terms of our earlier order, the key of the property has been kept with the learned Advocate General. He is requested to deliver the said key to the petitioner No. 1 or their authorised Agent, when asked for.
Dilip Kumar Basu, J.
40. I agree