Sabyasachi Mukharji, J. - (1.) This is an appeal arising out of an order of P.K. Banerjee, J., dated 21st of September, 1970. On the 5th of December, 1870, by a conveyance the Secretary of State of India in Council conveyed about 200 Bighas of land commonly known as Dhapa to the Justice of Peace for the town of Calcutta for conservancy of the City of Calcutta. In or about 1880 the said Dhapa Dumping Ground was thereafter leased out to Bhabanath Sen, the predecessor-in-interest of the Sens, the respondent to the present appeal, in consideration of the lessees agreeing to pay the rent partly in cash and partly by doing work of unloading refuse wagons at their own costs and expenses. Since thereafter the Sens and their predecessors-in-interest were holding a substantial portion of the said Dhapa land popularly known as "Dhapa Square Mile" as lessees under the Corporation of Calcutta. On the 29th of July, 1909, the lease was renewed for a further period of 22 years. Thereafter by a resolution the lease was extended upto 31st of December, 1930. Prior to 31st December, 1930 the District Survey and Settlement operations were undertaken in the area and the Assistant Settlement Officer held that the Sens were "Occupancy Raiyats" within the meaning of the Bengal Tenancy Act. After the expiry of lease notice to quit was served on the Sens. In 1933 Title Suit No. 70 of 1933 was instituted against the Sens in the First Court of the Sub Judge, 24-Parganas, Alipore, for ejectment and for arrears of rent, mesne profits and for a declaration that the decision of the Assistant Settlement Officer as to the status of the Sens as "Occupancy Raiyats" with regard to the said lands was erroneous and without jurisdiction. On the 17th of June, 1935 by a decree passed in the said suit, Sens were directed to make over khas possession of the lands in their possession and in the possession of the tenants. In August, 1935 Sens preferred an appeal to this High Court from the said decree and obtained stay of the operation of the said order. It appears that thereafter Sens approached the Corporation of Calcutta, for an amicable settlement of the pending appeal. Petition of compromise was filed in the said appeal embodying certain terms. Under the terms the status of the Sens as lessees was confirmed. On the 23rd March, 1936 a resolution was passed by the Corporation of Calcutta to settle all disputes on the terms and conditions set out therein. On the 1st of April, 1936, a fresh lease (service tenure lease) was entered into for a period of 30 years in consideration of the Sens agreeing to perform the service of unloading refuse wagons free of charge and also to pay cash rent in addition to the service as provided in the said agreement, commencing from 1st of April, 1936 between the Corporation of Calcutta and the Sens and their predecessors-in-interest with the option to the lessees to renew the lease for a further period of 20 years. Option mentioned in the said lease was stipulated to be exercised one year prior to the expiry of the lease. The said lease inter alia provided as follows: "Provided also and these presents and upon the express condition that if the said yearly cash rents hereby reserved or any part thereof shall at any time be in arrear and unpaid for one calendar month after the same shall have become due (whether any formal or legal demand thereof, shall have been made or not) or if the lessees shall, at any time, fail or neglect to carry out the work of unloading refuse and silt wagons in the manner and according to the terms and conditions hereinbefore provided except for reasons and cause beyond their control such as pestilence, epidemic or continued strike among labourers, riot, violence of mob, civil commotion, enemy action, air raid, earthquake, fire, flood or tempest or irresistible force of nature, or shall at any time fail or neglect to perform or observe any of the covenants conditions or agreements herein contained and on their own part to be performed and observed, or if the lessee while the said demised premises or any part thereof shall remain vested in that shall become subject to the insolvency law, or, make any arrangement or compromise with their creditors, or, permit any execution to be levied on the demised premises, or if the assigns of the lessees, being a company, shall enter into liquidation whether compulsory or voluntary, then and in such case it shall be lawful for the lessors or any person or persons duly authorised by them in that behalf to re-enter after the due notice and upon failure on the part of lessees to remove the cause or make good the breach, to the satisfaction of the lessors within a reasonable period, into or upon the demised premises or any part thereof." Lease Deed, however, was executed on 17th April, 1962. On the 12th of June, 1936 decree was passed in the appeal mentioned hereinbefore by consent of parties in the terms and conditions in the petition for compromise which was treated as part of the decree.
(2.) On the 12th of February, 1954 the West Bengal Estates Acquisition Act, 1953 came into force. Thereafter notice was served by the State of West Bengal on the Corporation of Calcutta and the Sens alleging that the said Dhapa land had vested in the State of West Bengal under the said Act and as such all rents due from and payable by the occupiers of the land should be paid to the State of West Bengal. In 1959 this notice was challenged by the Sens and the Corporation of Calcutta in two separate applications under Article 226 of the Constitution, being C. R. Nos. 1027 and 1132 of 1959 in this High Court. Rules nisi and interim injunctions were issued restraining the Government and its officers from giving effect of the said notice until disposal of the said Writ petitions. On the 18th of June, 1960, during the pendency of the said proceedings the Governor of West Bengal promulgated the Ordinance No. VI of 1960 amending Section 6 (1) (h) of the said West Bengal Estates Acquisition Act, 1953 by incorporating a proviso thereto. The effect of this proviso will require consideration in this appeal. After the enactment of the said Ordinance on 31st August, 1960, this Court by its judgment and order disposed of the said Writ Applications. The ordinance Was thereafter replaced by an Act. Sinha, J., (as his Lordship then was), in his judgment and order recorded the fact that it was admitted by counsel for the Government that regard being had to the Ordinance No. VI of 1960, he could not urge that the memorandum and/or notification could be given effect to. The learned Judge observed that the admitted position was that the lands had vested in Government but that the Corporation was entitled to retain the lands and had in fact retained the lands in accordance with the said Act and that the contractors or their sub-lessees continued to have their rights as before. On the 17th April, 1962 a formal Deed was executed between the parties which was with effect from 1st of April, 1936. On the 8th of February, 1965, the Sens claim to have exercised their option of renewal as contained in the said lease dated 17-4-1962, for a further period of 20 years and requested the Corporation of Calcutta to renew the said lease accordingly. On the 24th of March, 1965 a resolution of the Standing Town and Planning Improvement Committee of the Corporation of Calcutta was passed recommending grant of lease of further 400 bighas of land to the Sens. In May, 1965 the Corporation of Calcutta under the terms of the lease, granted further 400 bighas of land to the Sens on the same terms and conditions as set out in the said resolution. On 31st March, 1966 the lease expired. In April, 1966 the Sens paid rent for the additional 400 bighas of land under the said lease. The Corporation of Calcutta granted a receipt indicating that the said sum has been kept in suspense account. Between August, 1966 and September, 1967 there was correspondence between the Corporation of Calcutta and the Sens wherein the Corporation of Calcutta requested the Sens to give possession of 171 bighas of land within the said Dhapa Land, failing which the Corporation authorities would enter into the land for the purpose of dumping garbage. In December, 1967 the Sens again paid rent for about 400 bighas of land and the Corporation kept that amount in suspense account.
(3.) It is alleged that in May, 1969, one Sri Prasanta Kumar Sur, was elected the Mayor of the City of Calcutta. It was further alleged by the petitioners that the said Mayor was given a reception at Dhapa by the local people belonging to and/or being followers of the Communist Party of India (Marxist). Since July, 1969, it is further alleged by the petitioners, that the followers and/or supporters of the said political party had been forming themselves into unlawful assemblies in front of the Dhapa Katchari and had shouted provocative and filthy slogans and had threatened the Sens and their employees as also the tenants with dire consequences unless the Sens vacated the said Dhapa area. It is the case of the petitioners that since early November, 1969 the said persons and/or followers of the Communist Party of India (Marxist) prevented the employees of the Sens from collecting Dan, and Britti from the Fariahs. It is further alleged by the petitioners that Fariahs in the usual course came to the Dhapa katchari and suggested to the Sens that printed slips should be given to them in acknowledgment of receipt of such Dan and Britti. In December, 1969 the Sens caused slips to be printed and. directed their employees to hand-over the same against the payment of Dan and Britti to the Fariahs. The allegation of the petitioners is that since 1st of December, 1969 the followers and supporters of the said political party in furtherance of what the petitioners call unlawful conspiracy, daily looted and cut away the crops standing on the said lands and brought them in front of the Katchari and started selling them openly to the people and misappropriated the sale proceeds. On the 2nd December, 1969 the Corporation of Calcutta alleged that the Sens had failed and neglected to arrange for unloading of wagons filled with garbage which were alleged to have been sent by the Corporation of Calcutta to the said dumping ground. On the 7th of December, 1969 Sri Sur, as the Mayor of the Corporation of Calcutta, it is alleged, presided over a meeting organised by the C. P. I. (M) at Dhapa and made an inciting speech. On the 24th of December, 1969 the petitioners made an application under Article 226 of the Constitution of India. P.K. Banerji, J., issued a rule nisi whereby the respondents Police Officers in the said rule were directed to perform the statutory duties and other respondents were restrained from committing any of the criminal acts complained of in the said petition. It is alleged that on 24th of December, 1969 a cony of the order passed by this Court was duly communicated to the Corporation of Calcutta through the Sens' Attorney. On the. 25th of December, 1969 the petitioners state, that the order passed by P.K. Banerji, J. was duly published and printed in the daily issue of the Statesman. It is the case of the Corporation of Calcutta that it came to know of the aforesaid order of P.K. Banerji, J., on the 31st of December, 1969 from the letter written by the Sens' Solicitor. On the 2nd of January, 1970 the Corporation of Calcutta passed a resolution at 6-00 P. M. authorising the Commissioner of Calcutta to take immediate possession of the Dhapa land. The resolution is as follows : --"Resolved : I. That all the lands which were previously demised in favour of M/s. D. N. Sen and others and occupied by them including the agents and servants and all persons claiming under them, and or held by them in terms of lease Deed dated 17th April, 1962 which expired on 31st March, 1966, be immediately taken possession of by the Commissioner on behalf of the Corporation of Calcutta under proviso to Clause (h) of Sub-section (1) of Section 6 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) for purposes of the Corporation namely maintenances of essential conservancy services of the city, improvement, modification and augmentation in the methods and arrangements for garbage and other waste disposal at Dhapa and utilisation of the Dhappa lands for its requirements. II. The Commissioner be directed to issue notice forthwith on the persons concerned to deliver possession of the land noted above to the Corporation of Calcutta by 10 a.m. on 3rd January, 1970. III. Resolved also that in the event of failure of those concerned to comply with the notice to deliver possession, the Commissioner is directed to take delivery of possession on behalf of the Corporation of Calcutta on 3rd January, 1970 or as immediately as possible thereafter." Pursuant to the aforesaid resolution the Commissioner issued a notice to the Sens which is in the following terms:-- "Corporation of Calcutta I am to forward herewith for your information and compliance a copy of the resolution of the Corporation of Calcutta dated 2-1-1970. You may deliver possession accordingly at 10 a.m. on 3rd January, 1970 at the Office of the Municipal Railways at Dhappa to the Chief Valuer and Surveyor of Corporation of Calcutta on behalf of the Corporation of Calcutta. This may kindly be treated as Notice as desired in the resolution of the Corporation of Calcutta dated 2nd January, 1970." It is the case of the petitioners that the said notice was hung up at about 10 p. m. in the night at the residence of the petitioners. On the 3rd January, 1970 at 9 a. m. an application was moved by the Sens under Article 226 of the Constitution of India before P.K. Banerji, J., whereupon his Lordship was pleased to issue a rule calling upon the Corporation and the other appellants to show cause and was pleased to issue an interim order of injunction restraining the appellants and each one of them and their servants and agents from taking possession of the said lands, known as "Dhappa Square Mile" and from acting on the basis of the said resolution dated 2nd of January, 1970. It is the case of the petitioner that the order was communicated to the appellants over phone and by Special Messenger round about 9-30 a.m.; on the other hand it is the case of the appellants that the Corporation of Calcutta took the possession of the said land excluding the Katchari House without the knowledge of the said order of injunction. On the 5th of January, 1970 an application was moved for contempt against the appellants and a rule has been issued and an ad interim order of injunction has also been made. The said application is still pending.;