Paritosh Kumar Mukherjee, J.
1. This writ petition is directed against an order of requisition passed under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 (West Bengal Act V of 1947), being order No. 26/80 Regn. dated August 2, 1980, issued by the Deputy Secretary, Government of West Bengal and served on the petitioner No. 1 under memo No. 2677-Regn. dated August 18, 1980, whereby the petitioner was directed to place the disputed property, at the disposal and control, of First Land Acquisition Collector, Calcutta, on August 20, 1980, at 10-30 A. M.
2. The said order of requisition was passed by the Deputy Secretary to the Govt. of west Bengal, for following Schedule and description of the premises.
''11/1A, Sarojini Naidu Sarani (previously known as Rawdon Street, Calcutta-700 017. (Entire 4th floor of the premises now in occupation of D. I. G. of Police, Enforcement Branch and Home Guards, with the usual facilities, rights and easements, including lift, staircase, electricity and supply of water)'.
3. An oral writ application was moved before D. K. Sen, J, of this Court on August 20, 1980, whereupon order of 'Status quo' in respect of the fourth floor of the premises No. 11/1A, Sarojini Naidu Sarani (previously known as Rawdon Street). Calcutta-17 as on the said date was directed to be maintained till 26.8.80. on the undertaking of the writ petitioners to affirm the petition and file the same in court by 22. 8. 80. Thereafter, on 25. 8. 1980, D. K. Sen, J. had issued the Rule and extended the interim order, which was granted on 20. 8. 1980, until further orders. On that date it was made clear by His Lordship that the petitioners would not execute the decree for ajectment as against the respondents concerned in the meantime and the said Rule was made returnable six weeks from the said date.
4. Thereafter, the writ petition came up for hearing before B. C. Basak, J, on 9th August 1983, in the presence of the learned Advocate for petitioners and further interim Order was granted restraining the respondents from using the said premises for any other purpose for which the said premises were used at that point of time and if any portion was lying vacant that was directed to be remained vacant until further orders of this Court and this Court appointed. Mr. Vinoy Misra, an Advocate of this Court as 'Special Officer' to inspect the premises and submit a report. Further, on August 22, 1983, upon hearing the writ petitioners and Mr. Vinoy Misra, learned Special Officer, B. C. Basak, J, directed the status quo to be maintained as on the said date and the Civil Rule was heard from time to time by His Lordship on September 12, and 15, 1983, January 30, 1984, February 28 and March 6, 1984 though it was not recorded as heard-in-part by His Lordship by the last order. Ultimately, the matter was mentioned before me, on March. 17, 1987, for fixing an early date of hearing and the date of hearing was ultimately fixed by me.
5. It will be necessary for me to place the facts and short background of this case, hereinbelow :--
M/s. Adarsh Properties Private Limited, (being the petitioner No. 1 herein) is the owner of the disputed premises, being 11/1A, Sarojini Naidu Sarani, Calcutta-17, which is the subject matter of requisition of the instant writ petition and petitioner No. 1 is its Director and share-holder. The petitioner No. 1 filed a suit for ejectment against Deputy Inspector General of Police, Enforcement, on determination of the lease, in respect of the fourth floor of the said premises No. 11/1 A, Sarojini Naidu Sarani and Ejectment Suit No. 885 of 1975 was filed in the City Civil Court at Calcutta and on August 31, 1975, the learned Chief Judge, City Civil Court, Calcutta, was pleased to pass a decree in favour of the petitioner No. 1 allowing ejectment and passed the following Orders :'the suit be decreed on contest with costs, Defendant do vacate the suit premises within two months, failing which the plaintiff shall be entitled to recover possession.'
6. Thereafter the writ petitioners filed an execution case, being Execution Case No. 469 of 1976 before the City Civil Court, Calcutta for execution of the said, decreed dated 31st August, 1976.
7. In or about the month of November, 1976, the D. I. G. Enforcement, being the respondent No. 3 herein, applied for stay of execution of the said decree and this Court granted conditional stay and directed the said respondent No. 3 to deposit the arrears of rent and electric charges within a time stipulated by the said order and the respondent No. 3 failed and neglected to carry out the conditions imposed, by the said order and accordingly the stay order stood vacated.
8. Thereafter, the respondent No. 3 made another application before this Court for stay which was again rejected by this Court. In 1979, a Miscellaneous Case, being Misc. Case No. 1402 of 1979 was filed before the learned Chief Judge, City Civil Court, Calcutta, for execution of the said decree dated 31st August, 1976, and the learned Chief Judge, City Civil Court, Calcutta, on various occasions passed various orders directing the respondent No. 3 vacate and hand over possession of the said premises to the petitioner No. 1, but, the respondent No. 3 failed and neglected to do so and ultimately the learned Chief Judge, City Civil Court, Calcutta, was pleased to direct the police to render assistance to the writ petitioners and to obtain possession from the respondent No. 3.
9. It was at this stage, the writ petitioner No. 2 was surprised to receive the impugned pretended order of requisition dated 2nd August 1980, along with memo No. 2677 dated August 18, 1980, which has been challenged, in the instant writ petition stated as aforesaid.
10. Mr. Dhruba Kumar Mukherjee, learned Advocate appearing for the writ petitioners, challenged the impugned order of requisition and submitted that the purported order of requisition was nothing but a fraud committed upon the provisions of the statute, in as much as, there was no 'public purpose' behind passing of such order.
11. He contended in the second place that admittedly possession having been with the respondent No. 3, viz., D.I.G., Enforcement, no power of requisition could be exercised by the State Government for taking over possession from the writ petitioners, as the State Government has exercised powers on total non-application of mind.
12. Thirdly, he submitted that admittedly in terms of Act V of 1947 no services and amenities could be requisitioned such as facilities, rights including lifts, staircase, electricity, supply of water in respect of fourth floor of the premises, without apportioning the portion of the tenancy and/or identifying the portion of the premises and as such, such vague order cannot be acted upon either by the officials of the Land and Land Revenue Department and/or Land Acquisition Department and/or other 'officials of the respondents.
13. Lastly, Mr. Mukherjee submitted because of the prolonged continuance of the order of requisition and presumably because of pendency of the writ petition before this Court for seven years it has become all the more necessary by this time, either to release the property or to permanently acquire the same, under the provisions of Land Acquisition Act of 1884 (Act I of 1894), as it has been held in recent two judgments of the Supreme Court in the case of H.D. Vora v. State of Maharastra and Ors. reported in : [1984]2SCR693 followed in the case of Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta and Ors. since reported in : [1985]1SCR686 .
14. Mr. Mukherjee in support of his first contention submitted that as admittedly the suit property was in possession of the respondent No. 3 at the material point of time, i.e., on August 20, 1980, and as such, the question of delivery of possession by the writ petitioners, M/s. Adrah Properties (P) Ltd., by virtue of the order of requisition and/or in terms of the order of requisition did not arise, as even after passing of the ejectment decree the respondent No. 3 successfully resisted the said decree passed by the competent Civil Court on some pretext or other, as stated in paragraphs 6 to 8 of the present writ petition.
15. Mr. Mukherjee further submits that this shows complete non-application of mind by the requisitioning authority in the matter of exercising power and/or jurisdiction of requisitioning of property, which is not admittedly within the control of the citizen and the State Government, in fact, in exercising such power has over-stepped and not acted in accordance with the provisions of Section 3(1) of Act V of 1947.
16. In support of the second contention, Mr. Mukherjee submitted, in any event, there cannot be any 'public purpose' to accommodate a judgment-debtor, who suffers a decree from a Competent Civil Court, to resist the decree by exercising power of eminent domain, without compliance with the order of this Court in the appellant or revisional jurisdiction, by deposit of arrears of rent and electric charges, as stated in the paragraph 7 of the writ petition.
17. In elaborating the third branch of his submission that certain facilities including usual facilities, rights and easement including lifts, staircase, electricity and supply of water, not coming under the purview of the definition of 'premises' within the meaning of Section 2(e.) of the West Bengal Premises Requisition Control (Temporary Provisions) Act, 1947, the State Government cannot requisition 'such amenities' and/or 'services', by issuing the impugned order, being No. 26 of 1980 Regn. dated 2.8.80, which was purported to be served along with memo No. 2677 dated 18.8 80 upon the writ petitioners and, as such, the said order should be struck down as not an order in terms of Section 3(1) of Act V of 1947.
18. Lastly, he has referred from paragraph 5 of the Supreme Court judgment reported in : [1984]2SCR693 which dealt with Bombay Land Acquisition Act, wherein the Supreme Court observed as follows :
'The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of 'domain or control over property without acquiring rights of ownership' and must by its very nature be of temporary duration.
Thus the Government cannot under the guise of requisition continue for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transferrable character. If the public purpose for which the premises are required is of a perannial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely.'
19. Mr. Mukherjee further referred to subsequent case of the Supreme Court in the case of Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta and Ors. reported in : [1985]1SCR686 of the said judgment the Supreme Court observed as follows :
'Thus normally the expression 'requisition' is taking possession of the property for a limited period in contradistinction to 'acquisition'. This popular meaning has to be kept in mind injudging whether in a particular case, there has been in fact any abuse of the power.
Orders of requisition and acquisition have different consequences. These have been noted by this Court in the observations of Mukherjee, J. in the decision in the case of Charanjit Lal Chowdhury V. The Union of India, : [1950]1SCR869 arid the distinction between 'requisition' and 'acquisition' is also evident from Entry 42 in List III of the Seventh Schedule. Original Article 31, Clause (2) of the Constitution recognised the distinction between 'compulsory acquisition' and 'requisition' of the property. The two concepts are different, in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requisitioning authority. One is the taking over of the title and the other is the taking over of the possession.'
20. He has also referred to an unrepoited judgment delivered by me an April 8, 1987 in C.R. No. 5004 (W) of 1986, Asha Devi Dalmia v. State of West Bengal, wherein after considering the aforesaid two Supreme Court judgments, I had directed the State respondent to forthwith pass order of derequisition, in respect of premises No. 8/6, Alipore Park Road, Calcutta-27 and to hand over vacant possession in favour of the petitioner in that case within a particular period of time.
21. This Rule was heard by me on different dates from April 13, 1987, when no one appeared for the respondents but on subsequent dates, June 4 and June 5, 1987, Mr. Pulak Ranjan Mondal, learned Advocate appeared on behalf of the respondents and referred to the affidavit-in-opposition affirmed by Nripati Ghosal, First Land Acquisition Collector, Calcutta, on March 8, 1984, wherein in paragraph 5 of the said affidavit following statements had been admitted :
(a) The Deputy Secretary, Land and Land Reforms Department, Requisition Branch, Writers' Buildings, Calcutta-1, sent a R. O. No. 26/80 Reqn. dated 2. 8. 80 requisitioning the premises No. 11/1A, Sarojini Naidu Sarani (previously known as Rawdon Street) Calcutta-17 entire 4th floor of the said premises in occupation of D. I. G. of Police, Enforcement Branch and Home Guard with the usual facilities, rights and easement including lift, staircase, electricity and supply of water under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (W.B. Act V of 1947).
(b) A copy of the above R.O. Order by this office No. 2677 dated 18.8.80 was served on the petitioner No. 1 on 19.8.1980, with the direction to place the requisitioned property on 20.8.1980 at 10.00 A.M.
(c) Copy of service was accepted by an agent of the petitioner No. 1 by putting signature on the office copy.
(d) The possession could not be taken on 20.8.1980. In the meantime, interim order for status quo was obtained from the Hon'ble Mr. Justice Dipak Kumar Sen. But the said affidavit did not contain any material about other challenges thrown in the writ petition, regarding competence and/or jurisdiction of the requisitioning authority to take possession of the suit premises, which is admittedly under possession and control of the respondent No. 3 after expiry of the leasehold right even after passing of the decree of eviction by the Competent Civil Court stated as aforesaid.
21A. In my opinion, the said affidavit-in-opposition is totally uniformative regarding formation of requisite opinion, by the requisitioning authority and about existence of any 'public purpose' to forestall the decree passed by the competent civil Court and to by-pass the decree passed by the competent civil Court and not to obey the condition imposed by this Court in exercising the appellate power, in the appeal by not depositing arrear rents and electric charges.
22. In reply, Mr. Mukherjee has contended that where there is an actual existence of public purpose, the Court can certainly enquire into the same. The matter was gone into elaborately in the case of Satya Narayan Nathani v. State of West Bengal and Anr. since reported in 61 C.W.N. page 420. It is not disputed that Court has jurisdiction to enquire whether an order of requisition is supported by a public purpose. It was pointed out by Phani Bhusan Chakravarti, C.J. in Satya Narayan Nathani's case that 'Public purpose must include a purpose that has an object and an aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned.' The learned Chief Justice went on to add 'a government servant is undoubtedly a public servant in the broad sense of the term though very remotely a servant of the public and it may also be said that the public are interested in the proper discharge of a government servant of the duties of his office But where the conditions of a government servant's service do not require that accommodation is to be provided for him or there is nothing to show that there is some special reason for which it is essential to provide him with residential facilities or to find accommodation for him in a particular locality in order that he may be enable to perform efficiently the duties of his office, I find it difficult to hold that the purpose of providing accommodation to a person merely because he is a government servant and merely because he is in need of accommodation, is a purpose in which the public, who pay him by a salary for such services as he renders are further interested, not to speak of being interested directly or vitally.' With respect I agree and would only like to add that the existence of a service rule providing for the accommodation of a government servant is not necessarily conclusive of the public purpose behind a requisition for his accommodation.' In the case of Paresh Nath Nandi v. State of West Bengal, since reported in 68 C.W.N. page 264, a Division Bench of this Court consisting of H. K. Bose, C.J. and G. K. Mitter, J. after applying the aforesaid test in Nathani's case (ibid) came to the conclusion in the case of Paresh Nath Nandi that it was difficult to hold that apart from very special circumstances the requisitioning of a flat for the residence of a professor would be for a public purpose and could not accept the contention of the respondent State and allowed the appeal,
22A. It is really unfortunate that this type of urgent writ petition could not be disposed of at an early date by this Court and remains pending since 1980 for disposal.
23. Be that as it may, having regard to the accepted legal principles as well as on point that the premises was not under the possession and control of the writ petitioners at the relevant point of time, namely, on August 20, 1980, in my opinion, the State Government is not competent to issue any order of requisition in respect of the disputed 4th floor and further without apportioning the area, in respect of such facilities like services as the said Act V of 1947 has not been enacted for the said purpose by the legislature.
24. I further hold that the executive government and the delegates, who exedutes such powers have no' jurisdiction to put something in the executive order, which is not contemplated by -the legislature as it has been done in the instant case.
25. Accordingly, the order of requisition must be set aside for the same has been passed for oblique motive and collateral purposes only to furstrate the judgment, and decree passed by the competent civil Court, as observed aforesaid in this judgment.
26. In the result, the writ petition is entitled to succeed. The Rule is made absolute.
27. Let writ in the nature of Mandamus issue commanding the respondents to forthwith release the disputed premises in particular, 4th floor of the premises No. 11/1A, Sarojini Naidu Sarani (formerly known as Rawdon Street), Calcutta-17, in favour of the writ petitioners and not to give any effect to or further effect to the impugned order of requisition No. 26/80 dated August 2, 1980, issued by order dated August 18, 1980 (Annexure 'B').
28. There will be no order as to costs.
29. The respondents are further directed to fix and pay the requisition rent and electric charges for the period since September 1981 till the disputed premises is derequisitioned, if not paid in the meantime, within a period of one month from the date of communication of this order.
30. The Special Officer appointed by this Court by an earlier order is discharged. The Special Officer-in-Charge of the portion of the premises under the earlier order of this Court, is further directed to hand over charge of the same to the writ petitioners and he will be discharged after handing over possession of the disputed premises to the writ petitioners.
31. The Special Officer will be paid a sum of Rs... by the writ petitioners accordingly.
32. The prayer for stay of operation of this judgment made by Mr. P.R. Mondal, learned Advocate for the State is considered and refused in the facts of the present case.