ABDUL HAMID Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for appropriate writs for cancellation of an order of requisition dated 8th May 1950, purported to be passed under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (Act 5 of 1947) and for direction upon the opposite partics to forbear from giving effect to that order or taking any steps or proceedings thereunder.

(2.) The petitioner is the owner of premises No. 2 Chhaku Khansama Lane, Calcutta. The case of the petitioner is that prior to March 1950 the petitioner let out the premises to one Yusuf Miah at a rent of Rs. 300 per month. In or about the month of March 1950 communal disturbances broke out in Calcutta and the area where the petitioner's premises was situated was badly affected by such disturbances, with the result that refugees from East Pakistan and other persons forcibiy ousted all the sub-tenants under the said Yusuf Miah (who were all Muslims) from the said premises. Yusuf Miah immediately thereafter left for East Pakistan. In April 1950 the Nehru-Liaquat Ali Pact being entered into, the said Muslim tenants who were driven out of the said premises by the refugees made an application on or about 20th April 1950 to the Deputy Commissioner of Police. North, requesting him to restore possession of the said premises which was in the wrongful occupation of the refugees and others, to the said tenants irom whom possession had been wrongfully taken. This petition of the tenants is signed by one Khaliluddin and one Md. Ishaq and is counter-signed by Abdul Hamid the petitioner in the present proceedings. This petition further shows that one Yusuf was the representative of the tenants who were driven out of the premises and he made complaints to the Thana about the forcible eviction; but no police assistance was available. Yusuf Miah thereafter having left for Pakistan on or about 23rd April 1950. the petitioner at the request of one of the tenants who were actually residing at the said premises granted a tenancy to Abdul Majid for a period of one year and accepted a sum of Rs. 325 as advance payment. This Abdul Majid is respondent 4 in the present proceedings. On 1st May 1950 the Police authorities removed the refugees and other persons who were in wrongful occupation of the premises and made over possession to the Muslim tenants who were in the premises at the time of commencement of the communal disturbances. On 2nd May 1950 the refugees again started creating trouble and threatened the tenants with dire consequences in case they rontinued to occupy the said premises. Apprehending a breach of the peace three of the tenants -- Mushtaq Ahmed, Khaliluddin and Md. Ishaq and the petitioner applied to the Deputy Commissioner of Police for protection. On 8th May 1950 respondent 3 who is the Assistant Secretary to the Government of West Bengal issued an order in writing purporting to requisition the said premises under Section 3 (1) of the said W.B. Act 5 of 1947 and notice of such acquisition was sent to the petitioner on or about 30th May 1950 requiring the petitioner to place the property at the disposal of the First Land Acquisition Collector on that date. On the same date the Land Acquisition Collector through his representative took possession of the major portion of the said premises. No notice of the requisition was, however, served on either Yusuf Miah or Abdul Majid who were the direct tenants of the petitioner. On 22nd May 1950, Abdul Majid commenced criminal proceedings against the petitioner on a charge of cheating under Section 420, Penal Code. On or about 24th May 1950 the petitioner made an application to respondent 3 setting out the events that had taken place in the meantime and requesting respondent 3 to recall the order of requisition but the respondent 3 did not accede to the petitioner's application. On 31st May 1950 respondent 2 served notice on the petitioner directing him to remove all articles lying in two rooms of the said premises, by 16th June 1950. On 22nd June 1950, the petitioner appealed to the Hon'ble Minister of the Revenue Department. It was pointed out in this petition that the Muslim tenants who had been occupying the entire building had been forcibly displaced by the refugees and the local Goon-das and they were roaming about and had no place where they could take shelter. It is also stated in this petition that ultimately with Police help the premises was vacated and made over to the petitioner. In the petition the facts that a new agreement of tenancy was entered into with Abdul Majid and that the latter had filed a criminal case against the petitioner are also recited. This appeal was also rejected and the petitioner was informed by a letter from respondent 3 bearing date 28th August 1950 that the prayer of the petitioner for de-requisitioning the premises with a view to reinstate the old displaced tenants could not be granted as the house had been occupied by several families of Government employees, who had to be brought down to Calcutta for disturbances in East Bengal. Thereafter on 1st November 1950, a notice was served on the petitioner under Section 4 of W. B. Act 5 of 1947 calling upon the petitioner to execute certain repairs to the premises particulars whereof were specified in a schedule annexed to that letter. As the Government did not succeed in obtaining possession of all the rooms in the said premises a notice was served upon the petitioner on 6th November 1950 intimating that if possession was not delivered by 10th November 1950 forcible possession would be taken by breaking open the locks with the help of Police. On 10th November 1950, the petitioner wrote to respondent 2 pointing out that the locked up rooms which the Government intended to break open were in the occupation of two tenants named Mushtaq Ali Ahmed and Md. Ahsan who refused to vacate the rooms in spite of the fact that the Government order of requisition was shown to them. Thereafter the Government, however, managed to take possession of the remaining rooms from the petitioner and served him with further notices to execute repairs on the said premises and to pay municipal taxes in respect of the said premises as demanded by the Corporation of Calcutta. In the meantime the criminal proceeding which had been pending for about nine months was disposed of on 27th February 1951. The Magistrate after hearing the prosecution witnesses and the evidence given on behalf of the accused acquitted the petitioner of the charge of cheating. The notices calling upon the petitioner to execute the repairs and to pay out the Corporation taxes were served on the petitioner between 15th March 1951 and 15th May 1951. On 18th July 1951, the petitioner moved this Court and obtained a Rule Nisi.

(3.) It has been contended by Mr. Subimal Roy, the learned counsel for the petitioner that the requisition in the present case has not been made for a public purpose. The question whether this matter is justiciable has been the subject of much controversy in this case. Mr. Roy has relied on some observations of B.K. Mukherjea and Mahajan JJ. in the case of -- 'Province of Bombay v. Khusaldas S. Advani', (1950) S C R 621 and on the observations of Harries C. J. in -- 'West Bengal Settlement Kanungo Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee', 55 Cal W N 778, in support of his argument that the question whether a requisition in a particular case is for a public purpose or not can be enquired into by the Court.