- (1.) PREMISES No.32A,Brabourne Road,Kolkata originally belonged to the respondent. The entire six storey building (excludingthegroundfloor and aportion of thefirst floor) measuring 20093 sq.ft. had been requisitioned by the appellant under the West Bengal PREMISES Requisition and Control (Temporary Provisions) Act, 1947 (`Act' for short) for providing barrack accommodation for the police and for TrafficPoliceGuard Headquarterson 1.10.1958. The premises stood derequisitioned on 7.1.1994 by virtue of the provisions of Sections 10A and 10B of the Act.
(2.) THE appellant, thusbecame liable to vacateand delivervacantpossession on8.1.1994butcontinuedin unauthorized possession. By order dated 8.7.1994, made in a contempt petition filed by the respondent, the High Court grantedthreemonths timetothe appellanttoinitiate acquisition proceedings if it wanted to retain the premises and the said period of three months expired on 7.10.1994. THErefore,the respondentfiled asuit(CSNo.235/1996) seekingphysicalpossession of the derequisitioned property. A learned Single Judge of the High Court decreed the said suit on 9.9.1998 holding that the occupation of the appellant was illegal with effect from 8.10.1994 and consequently directed the appellant to pay compensation at the rate of Rs.7230/- per month from 8.1.1974 to 7.10.1994 and mesne profits at the rate of Rs.1,10,000/- per month from 8.10.1994 to 31.8.1998 and from 1.9.1998 to date of delivery of possession. The said decree was challenged by the appellant by filing an intra court appeal. The respondent filed cross objectionsbeing aggrieved by the quantum of the mesne profits. A Division Bench of the High Court, by judgment dated 29.7.1999 upheld the decision of the learned Single Judge that appellant was in wrongful possession of premises and was liableto be evicted.Thereafter,it heard the parties on the issue of mesne profits and by further order dated 10.8.1999 set aside the decree of the learned Single Judge in so far as the determination of mesne profits for the second and third periods (that is from 8.10.1994) and referred the matter to a Commissioner (retired Judge) for quantifying the mesne profits. Thesaid orderofthe Division Bench attained finality as it was not challenged by the appellant. The Commissioner appointedby theDivisionBench issued notice to the parties for determination of the mesne profits. In spite of repeated opportunities, the State did not participate in the proceedings. After considering the evidence placed by the respondent,the Commissioner submitted his reportdated 21.2.2000 underwhich he determinedthe mesneprofitsat Rs.8/- per sq.ft. from 8.10.1994 to 31.8.1998 and at the rate of Rs.9/50 per sq. ft. from 1.9.1998 till the date of recovery of possession. The appellant challenged the said report inter alia on the ground that itdid nothave anopportunity to let in evidence. The Division Bench considered and overruled the objections of the appellant by the impugned judgment dated 7.7.2000. It accepted the report of the Commissioner and directed that a final decree be prepared in terms of the report of the Commissioner (that is adopting the rate of rent and the periods for which such rates would apply). The Division Bench also directed that the respondent will be entitled to interest at 12% per annum on the arrears of rentand asalsofurtherrent.Thesaid judgment is challenged in this appeal by special leave.
(3.) LEARNED counsel for the appellant submitted that the propertywas acquiredin pursuanceof preliminary notification dated 28.9.1994 issued under Section 4(1) of the Land Acquisition Act, 1894 (`LA Act' for short) and final declaration dated 11.8.1997 issued under Section 6 of the LA Act and an award was passed by the Land Acquisition Officer on 24.2.2000. Possession of the acquired premises wasformally taken overunder Section 16 of LA Act on 24.2.2003. The validity of the said acquisition was upheld by this Court in Civil Appeal No.638 of 2005 decided on 21.10.2010 [State of West Bengal & Ors. Vs. Bireswar Dutta Estate Pvt. Ltd. & Ors.]. It was further submitted that in view of the pendency of the proceedings for acquisition, the appellant was under the bona fide impression that it neednotparticipate inthe proceedingsbeforethe Commissioner and the High Court ought to have set aside the report of the Commissioner and given an opportunity to the appellant toplacethenecessarymaterial relating to determination of mesne profits. We find that the appellant was given sufficient number of opportunities by the Commissioner to place its evidence in regard to mesne profits and the appellant did not do so. We also find from the report of the Commissioner which has been accepted by the High Court that the Commissioner has determined the mesne profits with reference to the rent that was being paid by the ground-floor tenant after making appropriate adjustmentforthe factthatthe valuation related to the upper floors. It is not in dispute that the premises issituated in the heartof Kolkata in a commercial area. The High Court, having regard to these facts had accepted the Commissioner's report and directed that mesne profits should be paid at Rs.8/- per sq.ft. for the periodfrom8.10.1994to31.8.1998 and Rs.9/50per sq.ft. from 1.9.1998 to the date of delivery of possession. We find that the award of compensation/mesne profits as above doesnotsuffer from anyinfirmitynor call for interference. The appellanthasnot beenable to demonstrate any prejudice on account of the report of the Commissioner.;