ASWANI DATTA MEMORIAL GIRLS HIGH SCHOOL Vs. JOY BUILDERS PRIVATE LIMITED AND OTHERS
LAWS(CAL)-1996-8-36
HIGH COURT OF CALCUTTA
Decided on August 27,1996

Aswani Datta Memorial Girls High School Appellant
VERSUS
Joy Builders Private Limited And Others Respondents


Referred Judgements :-

LATHAM V. RICHARD JOHNSON & NEPHEW,LTD. [REFERRED TO]


JUDGEMENT

Satyabrata Sinha, J. - (1.)This appeal is directed against a judgment and order dated 2-7-96 and 8-7-96 passed by Ruma Pal, J., whereby and where under the learned Trial Judge allowed the writ application filed by the writ-petitioners-respondents. An appeal has also been preferred on the original side by the appellant purported to be against the orders dated 2nd July, 1996 and 8th July, 1996 but no copies of those orders were annexed. In the said memorandum of appeal, no prayer has been made for leave to prefer appeal without the certified copy nor any undertaking has been given for drawing up and completing the order. It is stated by the learned counsel appearing on behalf of the appellant that two applications have been filed for extension of the order passed by N. K. Mitra, J. dated 17-12-1992 and another application has been filed for payment of the amount of compensation in instalments. The said two applications were directed to be heard along with the writ application filed by the petitioners in the appellate side being C.O. No. 5857 (W) of 1994. It is stated that as no specific orders have been passed in the applications filed by the appellant on the original side of this Court, the said applications should be deemed to have been rejected and thus an appeal has been preferred on the original side. In the said memorandum of appeal the writ-petitioners have not been impleaded as parties nor requirements of the original side rules have been complied with and thus, in our opinion, the said appeal in the original side is not maintainable, although a plain copy of the order dated 8-7-96 passed by the learned Trial Judge on the original side has also been produced before us by the learned counsel appearing on behalf of the writ-petitioner-respondents.
(2.)The fact of the matter is, in a narrow compass, as follows:-
The appellant before us is a school named as Aswini Dutta Memorial Girls High School which is an aided institution. On 11th Aug., 1961, the Government requisitioned a portion of the premises to accommodate the said shool and possession thereof was taken from the owners of the premises. As despite the fact that the requisition continued for a long time no order of de-requisition was passed, the owners of the said premises filed a writ application questioning the order of requisition on 11th Oct., 1988, purported to have been passed under Sec. 3(i) of the West Bengal Premises Requisition & Control (Temporary Provision) Act 1947. It is not in dispute that in terms of Sec. 10B read with sub-section (2) of Sec. 10 of the said Act, a premises cannot be kept under requisition for a period of more than twenty-five years. In the said writ application, the school authorities were also impleaded as party. By a judgment dated 27th Sept. 1989, Paritosh Kumar Mukherjee, J. directed derequisition of the said property with an option to the State Government to acquire the premises upon taking steps for publication of notification under Sec. 4 of the Land Acquisition Act. The State Government was also directed to pay requisition compensation. As the said order was not complied with, an application for contempt was filed, in which proceeding on the prayer made by the State Government, time to acquire the property was extended till 19th Feb., 1991. The contempt application was also disposed of by directing the State Government to de-requisition and give peaceful possession to the owner by 28th Feb., 1991. Such a direction was also given as against the school authorities. An appeal was preferred from the said order by the appellant, wherein an ex parte order of stay was granted on 27th Feb., 1991. The State Government also preferred an appeal and by an order dated 5th April, 1991, the interim order of stay was confirmed. The matter was taken to the Supreme Court of India by the owners by filing a special leave petition and by an order dated 14th November. 1991, the Honourable Supreme Court directed this Court to dispose of the appeal within one month. By a judgment and order dated 20th April, 1992 the said two appeals were disposed of wherein it was recorded that the State has agreed to acquire the property at the costs of the school authority and upon prayer of the school authorities, three months' time was granted, during which time the school shall be in possession of the property and on behalf of the owners an undertaking was given not to enforce the order for possession in the meantime. On 13th July, 1992, the State Government issued a notification under Sec. 4 of the Land Acquisition Act, 1894. The respondent No. 1 filed a writ application for quashing the acquisition proceeding and for getting the possession of the premises on the original side of this Court which was marked as Matter No. 3285 of 1992. By an order dated 17th December. 1982, the learned Judge disposed of the application, stating as follows:-

"Having heard the learned advocates for the petitioner and for the State-respondents, I dispose of this writ application by giving liberty to the State respondents to complete the acquisition proceedings and acquire the property within 4 months from date and to declare necessary award within a month thereafter and to pay the amount to the petitioner positively within three months thereafter.

I make it clear that the time limit so fixed is peremptory and mandatofy, in default of any of the clauses, the entire acquisition proceedings will stand quashed.

So far as arrear rent compensation is concerned, it is submitted by the learned advocate appearing on behalf of the State-respondents that the rent compensation has been received by the erstwhile owner till 12-11 -1990 and the rent compensation for the period from 13-11-1990 to 30-9-92 at the rate of Rs. 730.00 per month is due.

The respondents are directed to pay the said arrear rent compensation to the petitioner positively within 2 months from date."
By a letter dated 10th June, 1993, the Assistant Secretary Education Department addressed to the Secretary to the school asking for deposit of Rs. 20,00,000.00 as acquisition cost for the premises as assessed by the 1st Land Acquisition Collector Calcutta, for further action towards acquisition of the said premises. Allegedly on 19th July, 1993, foundation known as Satikanta Guha Foundation, addressed a tetter to the school agreeing to donate Rs. 20,00,000.00 to the school on behalf of the Foundation over a period of seven years. The said offer was to remain valid for a period of six months. By a letter dated 31st Dec., 1993, the Director of School Education inter alia, stated that the State is not in a position to bear the entire cost of acquisition and only a token sum of Rs. 10.00 has been sanctioned by the Department. The material portion of the said letter reads thus :
"Due to financial stringency, the State Govt, in the Education Deptt. regretted its inability to bear any cost for the proposed acquisition.

However, on receiving an undertaking from the school authority to the effect that they would bear the entire cost of acquisition the L.A. proceeding for the said premises were initiated. All possible steps for proposed acquisition viz. publication of notifications etc. have since been taken by the L. & L.R. Deptt. of this Govt. A token grant of Rs. 10.00 only has also been sanctioned from this Department to legalise the said L.A. proceedings.

But now the school authorities have expressed their inability to pay the entire cost of acquisition at a time and prayed for five years time for payment of the same in five instalments."
However, it is stated that in the meantime two applications on the original side of this Court in the aforementioned matter No. 3285 of 1992 had been filed, which applications were directed to be heard along with the writ application filed in the appellate side of this Court. The learned Trial Judge, keeping in view the aforementioned factual background allowed the writ application on two grounds namely, (1) the order of N. K. Mitra, J. has attained finality; and (2) as no declaration has been made under Sec. 6 within the time limit fixed by the first proviso to Sec. 6(1), the entire acquisition proceedings have become invalid.
(3.)Before proceeding to consider the rival submissions made before us, we may note that the learned Trial Judge also in her order to test the bona fide of the school authorities, who had submitted that it was ready and willing to deposit the entire Rs. 20,00,000.00 (rupees twenty lacs) adjourned the matter till 4th July, 1996, by which date the said amount was directed to be deposited, but when the matter was called on, on the said date, the school authorities asked for further time. Before us Mr. Gupta, the learned senior counsel appearing on behalf of the appellant had clearly stated that the school is in a position to pay a sum of Rs. 4,00,000.00 (rupees four lacs) only.
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