Sabyasachi Mukharji, J. - (1.) This is an application by three petitioners, who claim to be the owners of premises No. 156A. Mahatma Gandhi Road, Calcutta. It is the case of the petitioners that the said premise was taken on lease by the Superintendent, Railway Mail Service, C-Division, Gaya in the year 1943 for a limited period of three years though no formal deed of lease was executed. On the expiry of the said lease in the year 1946, the lessee, that is to say, the Superintendent, Railway Mail Service, C-Division. Gaya did not according to the petitioners, hand over the vacant possession of the said premises to the owners of the said premises. But, at the instance of the said lessee, the Superintendent, Mail Service, C-Division, Gaya, the respondent no. 1 that is to say. First Land Acquisition Collector, Calcutta requisitioned the said premises under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 and possession of the said premises was retained under the said Act. According to the petitioners, the only purpose and object of requisition of the said premises was to accommodate the Office of Railway Mail Service, C-Division, Gaya. It may not be in appropriate to mention that the order of requisition, however, does not specify any particular object but states as follows : "Whereas in the opinion of the Provincial Government the premises described in the Schedule below are needed for a public purpose : Now, Therefore, in exercise of the power conferred by sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act. 1947 (West Bengal Act V of 1947), the Provincial Government is pleased hereby to acquisition the premises described in the Schedule below and under sub-section (4) of the said section the Governor is further pleased to direct the First Land Acquisition Collector, Calcutta to secure possession of the control over the said premises and to take such other action as is necessary in connection with the requisitioning in accordance with the provisions of the said Act."
(2.) But, it is clear from Annexure-A to the affidavit-in reply of Abhoy Singh Surana, affirmed on 4th August, 1979, which is the possession certificate, that possession was taken by the Superintendent. Railway Mail Service, C-Division, Calcutta. The petitioners further state that the total area of the requisitioned portion of the said premises is 9, 165 sq.ft. comprising of certain floor areas. According to the petitioners, Railway Mail Service, C-Division, is now using a fraction of the said requisitioned area measuring 1200 sq.ft. which has been in use and occupation as office. The remaining portion of the said requisitioned area measuring approximately 8, 175 sq.ft. according to the petitioners, has ceased to be used for the office of Railway Mail Service, C-Division. Out of the remaining portion of the requisitioned area, an area approximately 4,700 sq. ft. is being used as Rest House accommodation for 'NB 7 & P4' Division of Indian Post & Telegraph Department and the balance remaining portion of the said requisitioned area for Office of the said 'NB' and 'P-Division'. The petitioners assert that the said requisition was not for accommodation of 'NB' and 'P-Division' of Railway Mail-Service or for setting up any Rest House and office of the said department. The petitioners' further case is that as the portion of the said premises is being used as Rest House, it creates nuisance and harassment to other tenants of the petitioners who are occupying other floors of the said premises in question. The petitioners in those circumstances and in view of the fact that the premises in question had remained under requisition for more than 34 years made a representation to the Government and the Government accepted, according to the petitioners, the said representation and replied on the 4th February, 1978, as follows : "Kindly refer to your letter dated November" 77 addressed to Minister (C) on the above subject. It has been decided to vacate the Rest House accommodation of 'NB' and 'P-Division' from your above cited building. The other P & T office and establishments functioning in 156A, Mahatma Gandhi Road, Calcutta will continue there. Postmaster General, Bihar Circle has been addressed to search out a suitable building in the vicinity of Howrah Railway Station. When the building becomes available the portion occupied by the rest house will be vacated."
(3.) Thereafter, attempts were made to find out suitable accommodation for the Rest House and, according to the petitioners, such suitable accommodation was found out and offered. But the Government did not vacate and did not de-requisition the premises. In the premises, the petitioners have moved this application under Article 226 of the Constitution alleging that there is no public purpose justifying the continuance of the requisition and the premises, in question, should be de-requisitioned. It may be mentioned that in the meantime the petitioners had made an application for increase or enhancement of rent, which application was made without prejudice to the petitioners' contention in this application under Article 226 of the Constitution. Upon this application being made. Rule Nisi was issued.;