D.K. Seth, J. - (1.) The Background : Portion of third floor of premises No. 1, Acharya -Jagadish Chandra Bose Road, Kolkata-700 020 was requisitioned by the Government of west Bengal under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947. The collector took possession of the premises on 17th of December 1970. On 11th of February 1995 an order of de- requisition was passed by the Land Acquisition Collector, Calcutta in terms of section 10B of the said Act. The period of 25 years of the requisition under the said Act expired on 16th of December 1995. On 29th of December 1995 the Land Acquisition collector requested the Commissioner of Police to make over the possession. But ultimately the possession was not made over. 1.1 Accordingly the writ petition being C.O. No. 6739 (w) of 1996 was filed before this Court by the present writ petitioners. By an order dated 18th of June 1996 while disposing of the writ petition, this Court directed the commissioner of Police, to make over the possession to the Land acquisition Collector, Calcutta on the date to be fixed by the Land Acquisition Collector in presence of a special Officer appointed by the Court. On 23rd of July 1996 the Special Officer submitted a report that the possession could not be delivered in the absence of the Commissioner of Police on the date fixed. An application was filed for recalling the order dated 18th of June 1996 on behalf of the State of West Bengal. This application was rejected on 13th of September 1996. 1.2. On account of violation of the order dated 18th of June 1996 a contempt petition was filed in which a rule was issued and the appearance of the alleged contemnors was dispensed with upon their appearance. However the contempt proceeding is still pending. An appeal against the order dated 13th of September 1996 was filed. The stay application filed in connection therewith was rejected. However the appeal being FMAT No. 3188 of 1996 is still pending. 1.3. Instead of handing over the possession, a notification under Section 4 of the Land Acquisition Act 1894 was published in the Calcutta Gazette for acquisition of the third floor of the said premises for providing barrack accommodation to Calcutta Police personnel on 16th of June 1998. Objection under Section 5A against the notification under Section 4 was filed by the petitioners on 24th of September 1998. 1.4. On 25th of January 1999 the present writ petition being WP No. 861 (w) of 1999 was filed in which an interim order was granted staying the operation of the notification under Section 4 for a period of 12 weeks with direction for affidavits. Subsequently 17th of May 1999 time for filing affidavit was extended while granting leave to the respondent to proceed under Section 6 of the Land Acquisition Act. This was directed to abide by the result of the writ petition. 1.5. From the affidavit-in-opposition, served on the petitioner on 10th of May 2000, it appears that the declaration under section 6 was published on 14th of January 1999, 17th of January 1999 and 20th of January 1999. However the same was served upon the petitioners on 23rd of February 1999. On 1st of February 2001 notices under Section 9 and 10 were served upon the petitioners. Ultimately on 2nd of May 2001 the petitioners were asked to remain present on 4th of May 2001. The award was published on 16th of May 2001. 1.6. It may be noted that the petitioners were tenants in respect of the premises. The owners were not made parties to this writ petition. Neither the owners challenged the acquisition. This writ petition was dismissed by me on 12th of July 2001 on the ground of maintainability because the lease under which the writ petitioners were claiming as tenant had expired in 1979 and that the owners were not impleaded as parties. 1.7. On 7th of September 2001 this petition has been filed by the petitioners for review of the order dated 20th July 2001. The petitioners filed an application on 28th January 2002 seeking to add the three owners. These three owners were added as respondent nos. 7,8 and 9. On 23rd of April 2004 the owners filed an application being CAN 3684 of 2004 for appropriate order in the writ petition no. 861 (w) of 1999 praying for quashing of the acquisition proceeding only on the ground that the award was published beyond the period of limitation of two years as prescribed under Section 11A of the Land Acquisition Act 1894. The Arguments :
(2.) Various arguments have been made on behalf of the petitioner and respondent nos. 7, 8 and 9. However it does not appear that the respondent nos. 7, 8 and 9 had been claiming any interest adverse to those of the petitioners, though they have claimed independent right for themselves. Whereas the respondent 1 to 4 being the State respondent had opposed the said prayer on various grounds which may be summarised thus : 2.1. The petitioners viz. Asiatic Investment Ltd., challenged the notification dated 16th June 1998 under Section 4(1) of Act -I of 1894 for acquisition of the 3rd floor of 1, A.J.C Bose Road, Kolkata - 20. The petitioners being tenants did not have any right to challenge the same. In support of this contention Mr. Dasgupta relied on Municipal Corporation of Grater Bombay v. Industrial Development Ltd. 1996 (11) SCC 501. 2.2. The documents of lease for 21 years alleged to have been executed in 1958 in favour of the petitioners was not registered. Further, the said lease having expired in 1979, the petitioners had no subsisting interest in the property. Therefore, the writ petition was not maintainable and the review application is without any merit. 2.3. The writ petition was dismissed on 12th July 2001 and the said review application was filed on 07.09.2001. The petitioners by filing an application dated 28th January 2002 sought to add three persons in the disposed of writ petition on the ground that the said acquired 3rd floor was purchased by those persons as far back in 1972. Although they were added as parties respondent nos. 7, 8 and 9 as owners (subject to proof) yet, it would appear from records that their names were not mutated in the Municipal records. Therefore, they were not persons interested within the meaning of the Act, as was held in W.B. Housing Board & Ors. v. Brijendra Prasad Gupta & Ors. (1997) 6 SCC 206. Such being the position in law, the added respondents cannot improve the situation in the review application. 2.4. Relying on the decision in Municipal Councils Ahmednagar & Anr. v. Shah Hyder Being & Ors. 2000 (2) SCC 48 Mr. Dasgupta contended that after passing of the award, no writ petition can be entertained challenging the notifications under Section 4(1) and 6 of the Act. Therefore, after a lapse of 33 years from the said date of purchase i.e. 1972, the Respondents 7, 8 and 9 could not be allowed to challenge the notifications, Award and/or any other L.A. connected proceedings due to inordinate delay and laches. 2.5. The added respondent nos. 7, 8 and 9 assuming, however not admitting, were the owners, did not file any objection under Section 5A, to the notifications under Section 4(1) of the Act and as such benefit of quashing will not accrue to them and the notification and declaration must be deemed to be in force so far as they are concerned. Mr. Dasgupta relied on Delhi Administration v. Gurdip Singh Uban & Ors., 1999(4) Indian Civil Cases (S. C.) 261 : (1999) 7 SCC 44 in support of his above contention. 2.6. Explanation to Section 11 A of the Act provides that in computing the period of two years referred to in that section, the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. In the above writ petition, by an order dated 25th January 1999, this Hon'ble Court was pleased to stay the notification under Section 4(1) dated 16th June 1998. Thereafter by an order dated 17th May 1999 leave was granted to the respondents to proceed with Section 6 of the 1894 Act. Therefore although the declaration was published on 14th January 1999, yet the final order to proceed with the said declaration was passed on 17th May 1999. Thereafter, on 16th May 2001 i.e. within 2 years, the award was published which was well within the time prescribed by the statute. Mr. Dasgupta received on Venkataswamappa v. Spl. Deputy Commissioner, 1996(4) Indian Civil Cases (S.C.) 149 : (1997) 9 SCC 128 to support his above contention. 2.7. Relying on the decision in N. Narasimhaiah v. Union of India (1996) 3 SCC 88 he contended that even if published after the statutory period of 2 years from the date of declaration under Section 6, the award cannot be set aside at the instance of persons having no locus standi and/or no right to challenge the same. 2.8. Assuming that the owners purchased the property in 1972 i.e. during subsistence of the Requisition order dated 9th December 1970, at no stage of any of the proceeding they took any step against the Requisition and Acquisition order. Even the present writ petition has been filed by the tenants and not by the owners. Therefore, by adding the owners in the review application, the petitioners are seeking reliefs by way of review, which is not maintainable either in law or in equity. The Review :
(3.) In this background the review application may now be examined. The review of the order dated 12th July 2001 dismissing the Writ Petition No. 861 (W) of 1999 is being asked for. The writ petition was dismissed on the ground that the writ petitioners were tenants on the basis of a lease for the period of 21 years outside the purview of the West Bengal Premises Tenancy Act. The lease had expired in 1979. They did not have any subsisting interest in the property. Therefore, the tenants could not claim any interest in the property within the scope of the 1894 Act. Now it is pointed out before me that the alleged lease was not a registered one. If the lease is not a registered one, even if it is granted for the period of 21 years, the same will not be taken away the tenancy outside the purview of the Premises Tenancy Act. It would still then be a tenancy within the meaning of the Premises Tenancy Act. That apart the fact remains that the tenancy continued after the alleged expiry of the lease in 1979. The tenant paid and the landlord received the rent continuously. The tenancy commenced in 1958. 3.1. The property was requisitioned under the 1947 Act in 1970. The tenants/writ petitioners received the requisition compensation. The tenants, despite dispossession on account of such requisition, continued to pay rent to the landlord. The landlord did not claim any compensation for requisition. The landlord remained satisfied with the rent paid by the writ petitioner/tenants. This position continued all through. Since the tenancy was continuing and the landlord having never disputed the relationship on requisition, the tenants were entitled to possession after de-requisition. Thus, the tenants had interest in the property. The purchase by the respondents No. 7, 8 and 9 in 1972 during the requisitioned period namely in 1972, viz: after the property was requisitioned in 1970, will not affect the right, title and interest in the respondents No. 7, 8 and 9 to the property by reason of their stepping into the shoes of the owner. The respondents No. 7, 8 and 9 having continued to receive rent and having not disputed the tenancy of the writ petitioners, the locus standi of the writ petitioners being person entitled to possession cannot be denied. 3.2. The other ground that was pleaded was that the award was published after the expiry of the period prescribed under Section 11 A. Attention of the Court was not drawn to this fact when the order dated 12th July 2001 was passed. This omission constitutes an error apparent on the face of the record. 3.3. These factual aspects were not attracted to the notice of the Court. It appears that the Court had passed the order dated 12th of July 2001 on wrong premise, i.e.: oblivion of these facts, amounting to an error apparent on the face of the record, a ground for review. It is also pointed out that the owners were not being parties to the writ petition, but now they have been so added and that the owners have also challenged the validity of and legality of the declaration of the award on the ground that the proceeding had lapsed after expiry of 2 years from the date of declaration under Section 6 by reason of the provision contained in Section 11A. 3.4 Accordingly the application for review is allowed. The order dated 12th of July 2001 is hereby set aside and the writ petition being WP No. 861 (w) of 1999 is restored to its original file and number. WP No. 861 (w) of 1999: Re-hearing ;