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Judgment
Pranab Kumar Chattopadhyay, J.—This writ petition has been filed say the petitioners challenging the rights of the respondent authorities to remain in possession of floor No. 3 of Premises No. 4. Netaji Subhas Chandra Bose Road at Tollygunge even after expiry of the licence period and also after quashing of the requisition older dated 26th September, 1997 by this Court on earlier occasion.
1(a). The petitioner No. 1 carries on the business of letting out on hire studios and films-sets. The petitioner No. 1 is the lessee of the premises No. 4, N.S.C. Bose Road in the Tollygunge area and floor No. 3 is on the south-eastern side of the said premises which comprises an area of 12.000sq. It. floor area apart from the adjoining vacant land.
1(b). According to the petitioners, respondent No. 1 requested the petitioners to grant licence In respect of floor No. 3 against payment of licence fee and on the basis of such representation petitioner No. 1 allowed the said respondent No. 1 to occupy the said floor Mo. 3 on and from October 1968 or, leave and licence basis for a period of one year only. The respondent No. 1 occupied the said floor No. 3 and used the same as godown.
1(c) After expiry of the licence period as the respondent No. 1 refused to vacate the said occupied portion of the premises in question petitioners hereto instituted a civil suit for recovery of the possession from the licensee. The said suit was filed in the Court of the learned third subordinate Judge of Alipore and was numbered as Title Smt No. 66 of 1971. The said suit was ultimately decreed to favour of the petitioner company on 20th June. 1973 whereby the learned Judge allowed the petitioner company hereto to recover khas possession of the suit premises by evicting defendant (the respondent No. 1 herein) therefrom.
In 1973 Title Execution Case No. 30 of 1973 was filed for execution of the said decree passed on 20th June. 1973. In the said execution proceeding terms of settlement were filed wherefrom it appeared that the parties sealed amongst others that the judgment-debtor would vacate and give khas possession of the suit property to the decree holder by 31.03.1975 It was further agreed between the parties that to toe event of failure of the judgment debtor to comply with any of the terms mentioned in the said terms of settlement, the decree by the decree holder forthwith upon expiry of the said 31.03.1975 and judgment debtor could not be entitled to claim any benefit of these terms of settlement.
Notwithstanding toe aforesaid undertaking and expiry of 31st March 1975, the licensee did not make over possession of the smt. presses to the petitioner company and thereby committed a breach of undertaking. The writ petitioners have contended that before toe licensor namely, the petitioner company herein could proceed to execution further, emergency was declared by the Central Government and on 8th August 1975 an order was issued by toe 4th respondent under the Defence and Internal Security Act requisitioning the said premises at about l.15 P.M. and demanding possession within 2 P.M. on the same date notwithstanding the fact that the licensor was served notice at Synagogue Street at Central Kolkata and the premises was at the southernmost part of Kolkata. In the circumstances possession of the premises was handed over through the Warehousing Corporation to the requisitioning authority and on the same date the requisitioning authority again made over the possession to the Warehousing the circumstances possession of the premises was handed over through the Warehousing Corporation to the requisitioning authority and on the same date the requisitioning authority again made over the possession to the Warehousing Corporation.
The learned counsel of the petitioners submits that after the decree was passed on 28th June. 1975, Warehousing Corporation had no authority in law to remain in possession of the premises in question but in view of the terms of settlement filed by the parties the said Warehousing Corporation was permitted to remain in possession till 31st March, 1975 and on the expiry of 31st March, 1975, the said Warehousing Corporation had no right to remain in possession. However, by reason of the possession being made over by the respondent No. 4 to the Warehousing Corporation on 8th August, 1975 the said Corporation assumed a semblance of right to remain in possession under the order of requisition issued under the Defence and Internal Security of India Act, 1971.
It is not understood how a portion of a film studio could be essential to India''s Defence and Internal Security particularly when the said portion was being unlawfully occupied by a State Government undertaking.
Padma Khastagir, J. (as Her Lordship then was) while deciding the earlier writ petition filed by the petitioner No. 1 herein being C. R No. 5697 (W) of 1977 specifically observed about the conduct of the respondent No. 1 which is quoted hereunder:
"Hence, the West Bengal State Warehousing Corporation by such dubious method continue possession in utter violation of an undertaking given before a competent Civil Court."
However, immediately prior to 26th September, 1977, the emergency declared by the Central Government ceased to have any effect and as such the Warehousing Corporation lost all rights to remain in possession of the said premises. Shockingly, on 26th September, 1977. the State of West Bengal came forward in aid of the respondent No. 1 and issued a requisition order u/s 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 in an unusual haste. In view of the aforesaid requisition order issued by the Government of West Bengal the petitioner company herein was directed again to place the property at the disposal of the First Land Acquisition Collector on and from 27th September, 1977.
The said Land Acquisition Collector again made over the property to the Warehousing Corporation and thus, the State of West Bengal unlawfully exercised its authority in order to allow the respondent Corporation to remain in possession illegally and wrongfully and in clear violation of the undertaking given before a competent Civil Court.
The petitioner company herein challenged the aforesaid order issued under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 in the earlier writ petition being C. R. No. 5697 (W) of 1977 which was finally disposed of by Padma Khastagir. J. on 5th July. 1991. While deciding the aforesaid writ petition. Khastagir. J. severely criticized the conduct of the Government of West Bengal as well as the respondent Corporation herein.
While allowing the aforesaid earlier writ petition Khastagir. J. specifically observed that the Corporation even without paying any rent was making profit by allowing warehousing facilities to the private parties. The relevant extract from the said judgment is quoted hereunder:
"Hence, without paying the rent the Corporation itself was making profit by allowing such warehousing facilities to two private parties."
From the said judgment dated 5th July. 1991 passed by Khastagir. J, it appears that the rule initially issued in terms of prayers (a) and (b) of the said writ petition on 21st November, 1997 was made absolute by His Lordship on 5th July. 1991. Prayers (a) and (b) of the said writ petition are quoted hereunder:
(a) A Writ and/or order or orders and/or directions in the nature of a Writ of Mandamus directing the respondents, their agents, servants and subordinates to forbear from giving any effect or further effect to or acting under and in accordance with the impugned order of requisition bearing No. 28/77 dated September 26. 1977 (Annexure ''J'' to the petition);
(b) A Writ and/or order or orders and/or directions in the nature of a Writ of Certiorari directing the respondents to certify to this Hon''ble Court the record of the case so that conscionable(Sic) justice may be done by setting aside and/or quashing the same;
Admittedly, no appeal was preferred from the said judgment and order dated 5th July. 1991 passed by Khastagir. J. on the earlier writ petition being CR. No. 5697(W) of 1977. Accordingly, the said judgment �reached its finality and is also binding upon the parties to the said writ petition for all times to come.
Notwithstanding the aforesaid judgment and order dated 5th July. 1991 passed in the earlier writ petition and despite repeated demands and representations made on behalf of the petitioners herein to the respondent authorities from time to time no step was taken for making over possession to the petitioners herein. Accordingly, this writ petition has been filed for a mandatory direction upon the respondents to deliver vacant possession of the said floor No. 3 of the premises No. 4, N.S.C. Bose Road.
The writ petitioners are admittedly out of possession in spite of fact that a decree has been passed by the competent Civil Court on contest and despite an undertaking given by the respondent No. 1, which is a State Government undertaking, for making over vacant possession of the premises in question to the petitioner company by 31st March, 1975 apart from the fact that the earlier requisition order dated 26th September, 1977 has been quashed by this Court while deciding the earlier writ petition filed by the petitioners herein on 5th Jury, 1991 wherein Khastagir. J. severely criticized the conduct of the authorities of the Corporation and also the Government of West Bengal.
The learned Counsel of the writ petitioners submits that the respondent Warehousing Corporation lost all its rights to remain in possession lawfully even for a moment after the judgment and order dated 5th July, 1991 passed by this Court on the earlier writ petition. It has also been, submitted on behalf of the petitioners that after filing of the present writ petition respondent Warehousing Corporation inducted Videocon International Limited in the subject premises at a much higher rental. In the year 1977 when the earlier writ petition being CR. No. 5697 was filed challenging the requisition order dated 26th September, 1977 another writ petition was also filed being C.R. No. 7795 (W) of 1978 for determination of compensation/damages/occupation charges. The said writ petition was allowed on 7th December, 1983 and Justice Mrs. Padma Khastagir was pleased to extend the time for completion of the assessment of compensation for 3 months. The assessment was made by the Land Acquisition Collector @ 28 paise per sq.ft. and produced a cheque for a sum of Rs. 3,42,432.80 p, on 22nd March, 1984. Indrapuri Studio accepted the said cheque without prejudice to its rights to claim further compensation. The proceedings to assess compensation, however, could not be completed for various reasons.
Mr. Kamalesh Bhattacharjee, learned counsel of the respondent West Bengal State Warehousing Corporation raised serious objections regarding maintainability of the present writ petition. According to Mr. Bhattacharjee, this writ petition is liable to be dismissed on the ground of delay alone. The learned counsel of the Warehousing Corporation also submitted that the present writ petition is barred by principles of res judicata and by reason of the provisions of Order 2 Rule 2 of the Code of Civil Procedure.
On behalf of the Warehousing Corporation it has been further contended that the prescribed authority of the State of West Bengal was under an obligation to make over possession of the premises in question to the Warehousing Corporation after quashing of the requisition order by this Court as possession was obtained by the State from the said Warehousing Corporation.
It has also been contended on behalf of the respondent Warehousing Corporation that the said Warehousing Corporation has become the tenant under the writ petitioner No. 1 and a suit has also been filed on behalf of the West Bengal State Warehousing Corporation against the petitioners for specific performance of contract in the Judges'' Court at Alipore which has been numbered as Title Suit. No. 241 of 2002 On an interlocutory application filed in connection with the said suit an order of status quo has already been passed by the learned Civil Judge and therefore, a serious objection has been raised by the learned Counsel of the respondent Warehousing Corporation that no relief can be granted in the present writ proceeding concerning possession of the suit premises nor any direction can be passed by this Court in the present proceeding for eviction of the Warehousing Corporation from the suit premises.
It has been submitted by the learned Counsel of the Warehousing Corporation that this writ petition is liable to be dismissed on the ground of delay alone. Mr. Kamalesh Bhattacharjee, learned Counsel of the Warehousing Corporation submitted that no explanation has been given by the writ petitioners in support of the delay in filing the present writ petition. According to Mr. Bhattacharjee, the writ petitioners herein did not explain why 7 years time, was allowed to lapse for purpose of filing the present will petition after disposal of the earlier writ petition by Padma Khasiagir, J.
Mr. Bhattacharjee specifically urged before this Court that since no explanation has been given by the writ petitioners for the aforesaid inordinate delay in filing the present writ petition, this court should dismissed this writ petition as otherwise the same will interfere with the right accrued in favour of I he Warehousing Corporation regarding execution of new tenancy agreement for which a Civil Suit is already pending before the competent Civil Court. Mr. Bhattacharjee referred to and relied upon a decision of the Supreme Court reported in Ashok Kumar Mishra and Others Vs. Collector, Raipur and Others, in support of his aforesaid contention.
Mr. Bimal Kumar Chatterjee, learned Senior Counsel of the writ petitioners submitted that after the order dated 5th July, 1991 passed by Padma Khastagir. J, on the earlier writ petition of the petitioner No. 1 herein several representations were made to the authorities concerned for making over possession to the writ petitioners on 4he basis of the said order and as the authority refused to act in terms of the said order, the writ petitioners had no other alternative but to file this writ petition.
Mr. Chatterjee further submitted that delay by itself cannot be a sufficient ground for dismissal of the writ petition particularly when no right has accrued in favour of third party in the meantime. It has also been contended by Mr. Chatterjee that in the present case no right has accrued either in favour of the State of West Bengal or the Warehojsing Corporation or to any third party by reason of the alleged delay or lapses on the part of the petitioners of this writ petition and as such even if there is any delay, the same cannot be a ground for refusing the prayers of the petitioners made in the present writ petition.
Learned Counsel of the writ petitioners cited the following decisions of the Supreme Court in support of his aforesaid arguments:
1) Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, paragraph 10.
2) (1999) 4 CC 450 (Hindustan Petroleum Corporation Ltd. & Anr. vs. Dolly Das) paragraph 8.
Mr. Chatterjee has rightly contended that the decision cited by the respondent Warehousing Corporation in the case of Ashok Kumar Mishra vs. Collector. Raipur & Ors., reported in Ashok Kumar Mishra and Others Vs. Collector, Raipur and Others, . is clearly distinguishable In the facts of the present case as there is no question of public inconvenience or interference with the rights of others involved m the present case which was taken into consideration in the aforesaid decision of the Supreme Court in the Case of Ashok Kumar Mishra & Anr. (supra): Accordingly, the aforesaid objection raised on behalf of the respondents regarding maintainability of this writ petition on the ground of delay is clearly devoid of any merit and cannot be sustained in the facts of the present case.
The other serious objection raised on behalf of the respondents is that the present writ petition is barred by principles of res judicata and '' by reason of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. Mr.- Bhattacharjee submits that the present writ petition is barred under Explanation (iv) to Section 11 read with Order 2 Rule 2 of the Code of Civil Procedure. According to the learned counsel of the respondent Corporation, the remedy as prayed for in the present writ petition was also available to the petitioner No. 1 in the earlier writ petition being
According to Mr. Bhattacharjee, specific challenge was also made in the earlier writ petition being CR. No. 5697(W) of 1977 regarding legality and validity of the order of requisition dated 26th September, 1977 as well as Use possession of the Warehousing Corporation in respect of the premises in question. The learned counsel of the respondent Corporation submitted that the petitioner company herein did not pray for recovery of possession in the earlier writ petition although the said relief could be claimed in the earlier writ petition.
Referring to the decision reported in Maharashtra Vikrikar Karamchari Sangathan Vs. The State of Maharashtra and Another, , Mr. Bhattacharjee contended that the writ petitioners herein cannot pray for recovery of possession in the present proceeding as the said prayer could be made in the earlier proceeding. Since, the writ petitioner did not pray for the aforesaid relief inspite of the same being available in the earlier proceeding, the learned counsel of the respondent Corporation submitted that it is no longer open to the petitioner to re-agitate the issue again and to claim the said relief in the present proceeding as according to the respondents it would be barred under the principles of constructive res judicata in view of the aforesaid decision of the Hon''ble Supreme. Court.
The learned counsel of the respondent Warehousing Corporation also submitted that omission by the petitioner to raise all available issues which he could raise in the earlier proceeding would constitute constructive res judicata and it must be deemed that the said relief must have been waived by the petitioners. The learned counsel of the respondents cited a decision of the Supreme Court reported in P.K. Vijayan Vs. Kamalakshi Amma and Others, paragraph 13 in support of his aforesaid contention and the relevant portion from the aforesaid paragraph is quoted hereunder:
"13. ...It is a sheer abuse of the process of the Court to raise at each successive stages different pleas to protract the proceedings or to drive the party-to multiplicity of proceedings. It would be fair and just that the parties raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time. Thereby it must be deemed that they are waived."
Mr. Bhattacharjee referred to the Division Bench judgment of this Hon''ble Court reported in State of West Bengal Vs. Satyanarayan Rice Mill, and Submitted that the provisions of Order 2 Rule 2 of the CPC applies to an application under Article 226 of the Constitution of India.
Mr. Bhattacharjee further submitted that provisions of Section 11 of the Code of Civil Procedure- is applicable to writ proceedings as held by Hon''ble Supreme Court in the following decisions:
1) The Amalgamated Coalfields Ltd. and Another Vs. The Janapada Sabha, Chhindwara,
2) Daryao and Others Vs. The State of U.P. and Others,
The learned counsel of the writ petitioners however, submitted that in the earlier writ petition all reliefs that were needed and sought for had been granted. Mr. Chatterjee, learned counsel of the petitioners has submitted that because of the rule being made absolute in terms of prayers (a) and (b) of the earlier writ petition the said authorities were bound to make over the possession of the premises in question to the petitioner No. 1 herein. It is true that no specific order for delivery of possession was passed earlier by this Court but in my view, direction for specific delivery for possession was implicit in the said order dated 5th July. 1991.
Scrutinising the records of this case and going through the said order of requisition dated 26th September, 1977 I am convinced that the State of West Bengal by the aforesaid order of requisition dated 16th September, 1977 took the possession of premises in question and handed over the same to the said Warehousing Corporation in a desperate attempt to create an alleged legal right in favour of the respondent Warehousing Corporation to remain in possession in respect of the suit property in breach of the undertaking filed before the competent Civil Court in connection with an execution proceeding. Accordingly, after the said order of requisition dated 26th September, 1977 was quashed, delivery back of possession is merely a corollary of the quashing/setting aside of the order dated 26th September, 1977.
It will be legally absurd to contend that the State Warehousing Corporation must continue in possession inspite of setting aside and quashing of the order of requisition by virtue of which the said Corporation came into possession. Both the State respondent and the Warehousing Corporation have been misinterpreting the order of 5th July. 1991 as if a specific order for specific delivery was required which allegedly had not been sought for and obtained by the writ petitioners. Such interpretation of the order dated 5th July. 1991 would amount to a travesty of Justice and put a premium to the wholly unreasonable and arbitrary action of the State Authority depriving the writ petitioners of their right to property without any authority of law.
This writ petition is virtually a petition before this Court for enforcement of the order passed by this Court in the earlier writ petition. A second writ petition for enforcement of the earlier order is very much maintainable.
In the case of Bibekananda Mondal vs. Styate of West Bengal reported in (2003) 1 WBLR (Gal) 213. this Hon''ble Court specifically held that without initiating a proceeding for contempt, the Court can quash any order or proceeding done in disregard of such order which may also tantamount to contempt. The relevant portion from paragraph 6 of the said judgment-is quoted hereunder:
"6. It is therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ Court. This Court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done in wilful disobedience of a Court Order is not only contempt, but also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said Article recognizes a very wide power on the High Courts to remedy injustice whenever It Is found.
The Supreme Court in the case of Devaki Nandan Prasad Vs. State of Bihar and Others, entertained a second writ application under Article 32 of the Constitution of India and passed specific order directing the Authority to do what was earlier directed by the Supreme Court on the first writ application.
It has further been submitted by Mr. Bhattacharjee that the decree passed by the Civil Court in Title Suit No. 66 of 1971 is yet to be executed by the decree holder, Indrapuri Studio and the respondent Warehousing Corporation is entitled to contest the said execution proceeding by filing an application under Order 21 Rule. 87 of CPC or Order 21 Rule 101 of CPC. According to Mr. Bhattacharjee, writ petitioner,-Indrapuri Studio has abandoned the execution proceeding and has taken recourse to writ proceeding to get the decree executed by evicting the Warehousing Corporation although such a procedure according to the said learned counsel has been deprecated by the Court of law. Mr. Bhattacharjee referred to a decision of this Court reported in 2003(1) CHN 323 (Ram Kanta Das & Ors, vs. State of West Bengal A Ors.). The submissions made on behalf of the respondent Warehousing Corporation regarding accrual of rights in favour of the said Corporation to contest the execution proceeding by filing applications under Order 21 Rule 97 of CPC or Order 21 Rule 101 of CPC are not at all convincing and also not available to the respondent Corporation in the facts of the present case.
The learned counsel of the respondent Warehousing Corporation specifically argued that the State authorities are under an obligation and are duty bound to make over possession of the premises in question to the Warehousing-Corporation after quashing of the order of requisition the possession was taken over by the authorities of the State from the said corporation. Strangely; the learned counsel of the respondent Corporation also took a contradictory, and confusing stand and submitted that quashing of the order of requisition dated 26th September, 1977 by this Court did not confer any right on the writ petitioners herein to pray for recovery of the possession of the godown, from the Warehousing Corporation as according to the said learned counsel of the respondent Warehousing Corporation, possession was never taken by the Warehousing Corporation as a consequence of the requisition order dated 26th September, 1977.
Now, it is to be examined whether the authorities of the State of West Bengal could make over possession to the respondent Warehousing Corporation.
Mr. Chatterjee, learned counsel of the writ petitioners submitted that in view of the decision of the Supreme Court in the case of Kewal Chand Mimani (D) by Kewal Chand Mimani (d) by Lrs. Vs. S.K. Sen and Others, , the authorities of the State of West Bengal could not and should not hand over the possession of the premises in question to the respondent Warehousing Corporation after quashing of the requisition order in the facts of the present case.
In view of the aforesaid decision of the Supreme Court I am of the opinion that the question of making over possession back to the Warehousing Corporation does not and cannot arise. The possession is to be made over to him who is lawfully entitled thereto. Warehousing Corporation lost all its semblance of right to remain in possession Jong back. A judgment debtor''s possession is not and cannot be lawful possession. The possession of an allottee under an invalid requisition order (the requisition order being set aside and quashed) is also not and cannot be any lawful possession and therefore, I am constrained to hold that the continuance in possession of the Warehousing Corporation is wholly unlawful.
One other important aspect to be considered now by this Court is regarding exercise of writ jurisdiction during pendency of the suit filed, by the respondent Warehousing, Corporation for specific performance and particularly when an order of status quo has already been, passed by the competent Civil Court entertaining the said suit filed by the Warehousing Corporation. Admittedly, during pendency of the present writ petition, the respondent Warehousing Corporation filed a suit for specific performance in the Court of 2nd Civil Judge (Junior Division), Alipore. The said suit was filed on 8th September. 2002 and has been numbered as Title Suit No. 241 of 2002.
In the said Title Suit, the learned Judge passed an order on 5th October, 2002 directing the parties to the suit to maintain status quo in respect of the suit premises and not to change its nature and character and also from transferring the same in any manner whatsoever till 29th November, 2002.
Copies of the plaint and the application filed under Order 39 Rules 1 and 2 read with Section 151 of the CPC In connection to the said Tide Suit No. 241 of 2002 and certified copies of the orders passed on various dates by the learned Judge have been produced before this Court wherefrom it appears that the aforesaid order was passed by the learned Trial Judge In the context of the prayer of the respondent Warehousing Corporation in the said suit to the following effect:
"An order of temporary injunction be passed restraining the defendants from entering into any agreement for tenancy with any person, company or authority in respect of the suit premises other than the plaintiff and from interfering with the possession or enjoyment of the plaintiff in the suit premises described in the schedule hereinbelow till the disposal of the suit. In the said Title Suit No. 241 of 2002 the State Authority has not been made a party."
The hearing of the present writ petition commenced on or about 26th June. 2002 and since 26th June, 2002 till filing of the suit on or about 18th September, 2002 atleast on 5 days the hearing of the writ petition took place. Between 26th June. 2002 till 5th October, 2002 there has been as many as 10 hearings. Because of paucity of the Court''s time the hearing of the writ petition could not be completed before 5th October, 2002.
If is too well known a proposition that an order of a stay is an order addressed to a Court whereas an order or injunction is addressed to a party to a proceeding. In this regard reference may be made to the decision reported Mulraj Vs. Murti Raghonathji Maharaj, . The order dated 5th October. 2002 passed in the said Title Suit No. 241 of 2002 is not an order of stay but an order of injunction addressed to the parties to the suit. In the said suit, the State respondents in the present writ petition being the State of West Bengal and First Land Acquisition Collector are not parties. The order of injunction does not and cannot therefore, operate against them in any event.
Admittedly, the said State respondents are the parties to make over possession to the writ petitioners. Besides, that the said Title Suit No. 241 of 2002 is on the face of it an abuse of the process of Court. The belated filing of the said suit and an order passed against the parties cannot prevent the writ Court from exercising its jurisdiction in passing an order on the State which is not a party to the said suit and is consequently not bound by the order to status quo. Subsequent filing of the suit cannot and does not fetter the power of a writ Court, nor does it create an impediment in the exercise of writ jurisdiction. It is not a case that the suit was first filed and thereafter the writ petition has been filed in respect of the same subject matter.
The malafide of the Warehousing Corporation is replete if one peruses the plaint filed by them. The alleged agreement to grant tenancy is said to have taken place in 1977 and alleged refusal to execute the same commenced immediately after the order in earlier writ on 5th July, 1991 and the present suit for specific performance has been filed in September. 2002. The alleged rent receipt on the basis of which the order of status quo has been obtained is not a rent receipt but a receipt granted to the plaintiff by State Authority and not by the defendants in the suit. Almost in a similar situation in a matter in an unreported judgment in the Matter No. 4394 of 1987 (Central Model School Guardian Association vs. State of West Bengal & Ors.) the High Court at Calcutta inspite of the fact that the decree holder in an appeal from the decree had given an undertaking to the Court not to disturb the possession of the judgment debtor, the writ Court was pleased to exercise its writ jurisdiction directing the special officer of the Court, who was in possession of the property pursuant to an order passed in the said writ to make over possession to the decree holder.
Mr. Bhattacharjee however, contended that the writ petition is not maintainable in view of the aforesaid facts and circumstances of the case. According to the learned counsel of the respondent Corporation although a decree has already been passed by a Civil Court and an execution proceeding is also pending for execution of the said decree but admittedly, in the said execution proceeding a compromise was entered into by both the parties, namely, the petitioner company and the State Warehousing Corporation wherein it was agreed that if the judgment debtor Corporation does not deliver possession to the decree holder by 31st March, 1975 the decree would be executable forthwith. So. according to the learned Counsel of the respondent Warehousing Corporation since, possession was not delivered on the expiry of 31st March, 1975 by the judgment debtor, remedy was available to the petitioner company being the decree holder lo proceed with the execution case.
The learned counsel of the respondents further submitted that after withdrawal of emergency during March 1977. the petitioners herein started negotiations with the respondent Corporation for grant of fresh tenancy in respect of the suit property and the offer of fresh tenancy at the rate of rent offered by the writ petitioner No. 1 was accepted by the Warehousing Corporation. According to the counsel of the said Warehousing Corporation, immediately after acceptance of the aforesaid offer of the petitioner company by the respondent Corporation order of requisition dated 26th September, 1977 was issued.
The learned counsel of the respondent Warehousing Corporation further submitted that after the order of requisition was quashed by the Court of law the writ petitioner, Indrapuri Studio refused to perform its part of obligation under the contract for new tenancy and Warehousing Corporation has filed a suit for specific performance of contract in the Judges Court at Alipore being T. S. No. 241 of 2002 within the period of limitation as prescribed under Article 54 of the Limitation Act. It has also been submitted by the said counsel of the Corporation that in the said suit prayer was made for specific performance of contract of tenancy and it was specifically alleged that the plaintiff Corporation is in physical possession of the suit property for long 30 years or more and entered into agreement with the defendant Indrapuri Studio for new tenancy. Due to apprehension of getting the property let out to third parties by agreement of tenancy ignoring the terms of contract between Indrapuri Studio and Warehousing Corporation a prayer for injunction was made in the Civil Court at Alipore in the said suit and the learned Judge. Civil Court. Alipore was pleased to pass an order of status quo in respect of the suit premises till further order. Learned counsel of the Corporation submitted that an application was moved for rejection of plaint under Order 7 Rule 11 CPC by Indrapuri Studio which was also heard by learned Civil Judge (Junior Division). Second Court. Alipore and the said application under Order 7 Rule 11 was rejected and suit was held maintainable by the learned Civil Judge.
According to the learned counsel of the respondent Corporation, no relief can be granted in the present writ proceeding concerning possession of the suit premises nor any direction can be passed evicting the Warehousing Corporation from the suit premises in the facts and circumstances of the present case.
The learned counsel of the respondent Corporation also submitted that the question of offer and acceptance of terms of contract for new tenancy is disputed question of fact which cannot be gone into a writ petition and without trial on evidence the issue cannot be decided and as such any order effecting status of the party in the suit premises if passed in the present writ petition the same will affect the respective right of the parties in the pending civil suit. Mr. Bhattacharjee, learned counsel of the Corporation relied upon the decisions of the Supreme Court reported in Jai Singh Vs. Union of India and Others, and Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, in this regard.
Considering the rival contentions of the learned counsel of the respective parties I am of the view that the objections raised on behalf of the respondent authorities are devoid of any merits. Desperate attempts have been made repeatedly on behalf of the respondent authorities to allow the respondent Warehousing Corporation to remain in possession of the premises in question. I am also unable to accept the objection raised by the respondents herein that the present writ petition is barred under Explanation IV to Section 11 read with Order 2 Rule 2 of the CPC under any circumstances.
The learned Advocate General appearing on behalf of respondent Nos. 3 and 4 raised similar objections regarding maintainability of the writ petition on the ground of delay and further submitted that the writ petition is also barred by principles or res judicata and by reason of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. Admittedly, the learned counsel of the respondent Warehousing Corporation also raised the aforesaid identical objections which have been discussed hereinbefore. No other new points have been argued by the learned Advocate General in this proceeding which can be discussed separately.
For the aforementioned reasons, none of the points raised on behalf of the respondents is sustainable either on facts or in law and as such this writ petition must succeed and the same is thus allowed.
The respondent Nos. 3 and 4 are therefore, specifically directed to take steps to obtain possession of the floor/godown No. 3 situated on the south-eastern side of the premises No. 4. N. S. C. Bose Road. Calcutta together with adjoining land from the respondent Nos. 1 and 2 and make over the same to the writ petitioners within 3 weeks from the date of communication of this order and for doing so the respondent Nos. 3 and 4 will take all necessary steps for effective implementation of this direction of this Court within the aforesaid period.
The observations in this judgment have been made while dealing with the facts and circumstances of this case and those observations are without prejudice to the rights and contentions of the parties in the pending Civil Suit.
There will be, however, no order as to costs. The parties are directed to act on the basis of the operative portion of the signed copy of the minutes of this order on the usual undertaking.