State of West Bengal & Anr Vs. M/S. Banalata
Investment Pvt. Ltd. & Anr  Insc 250 (30 April 2001)
Mohapatra & Umesh C. Banerjee Banerjee,J.
State of West Bengal is in appeal against the Judgment
and Order of the Calcutta High Court recording a finding that the dispossession
of the Writ Petitioner/Respondents herein on 19th March, 1991 was arbitrary and without process of law. The High Court
further directed in its Order that the State authorities will not in any way
disturb the possession of the Writ Petitioners without taking recourse to the
provision of the West Bengal (Public Land Eviction of Unauthorized occupants)
Act 1962 or such other provision as may be available to them.
contextual facts depict that the Writ Petitioners were in possession of three
out houses in premises No.62
Syed Amir Ali Avenue,
Calcutta. The High Court while dealing with
the facts came to the conclusion, however, that possessory right ought not to
prevent the vesting of the entire property in the State Government and thus
came to a finding that the entire premises No.62, Syed Amir Ali Avenue Calcutta
came to be vested on to the State Government on and from 5th December, 1983.
The High Courts finding on this score remains un-challenged as such we need not
delve into its factual acceptability.
further factual score, the High Court observed that whether the Writ
Petitioners/respondents herein can at all be said to be tenants in respect of
the premises under their occupation under heirs of S.K. Ghose, since diseased
or under V.C. Sood as claimed by the Writ Petitioners could not be of any
concern of the Court in the appeal before it, but as consequence of the State
Governments acquiring of title to the premises, continued occupation without
the sanction of the later was unauthorised. This aspect of the factual finding
also has not been challenged as such we need not dilate on this score as well.
High Court however, even though as noticed above came to the conclusion that
the above noted entire premises came to vest in the State Government on and
from 5th December, 1983, but recorded a finding that taking recourse to the
provisions of the West Bengal Government Premises Tenancy Regulation Act, 1976,
for the purpose of obtaining possession of the premises in question does not
and can not arise. The High Court as a matter of fact observed that it is no bodys
case that the Writ Petitioners were inducted as tenants by and on behalf of the
State Government and as such the provisions of 1976 Act can not be said to be
extended to the petitioners who claimed to be the tenants not of the State
Government, but of the owners of the property and it is on the wake of the
aforesaid finding that the High Court denounced invocation of the powers under
Section 6(A) of the 1976 Act and directed not to disturb the possession of the
Writ Petitioners in the premises in question. It may be noticed herein that the
above noted directions concerning non-disturbance however was subject to taking
recourse to the provisions of West Bengal Public Land (Eviction of un-authorised
Occupants) Act, 1962 or such other legal possession as may be available to
them. In short thus, the High Courts finding is to the effect that whereas the
provisions of 1976 Act cannot be made applicable in the facts and the matter
under consideration, but leave was granted to take recourse to the Act of 1962.
proceeding further, be it noted that Government premises stands defined in the
Act of 1976 as meaning any premises, which is owned by the State Government or
by Government undertaking, but does not include.
Section 3 of the Act of 1976 deals with the termination of tenancy, section 4
provides for restoration of possession. This statute provides in section 4 that
upon termination of tenancy under any of the provisions of Section 3, the
tenant has to restore vacant possession forthwith of the premises occupied by
him in favour of the prescribed authority, but in the event, the tenant fails
to restore the possession of the premises, the prescribed authority may take
such step or steps or use such force as may necessary to take possession of the
premises and may also enter into such premises for the aforesaid purpose.
the statute whereas in Section 6 provides penalty for failure to deposit rent
in time, Section 6(A) provides as below:- 6A. Eviction of unauthorised
occupants and penalty for such occupation. Where any person not being a tenant
occupies, or remains in occupation, of any Government premises without the
written order of the prescribed authority,-
the prescribed authority, or any officer authorised by it in this behalf, may
take such steps and use such force as may be necessary to take possession of
the premises and may also enter into the premises for the said purpose; and
person shall be punishable with imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.
authorisation to Act in terms of provision of 1962 Act obviously finds place in
the judgment itself by reasons factum of the respondents tenancy being declared
unauthorised and to appreciate the same, a look at the 1962 Statute would be
convenient. The Act of 1962 has been introduced in the statute book to provide
speedy eviction of unauthorised occupants from public lands, which however
includes buildings and other things attached. Similar however, is the provision
for issuance of notice and the statutory sanction in terms of section 4
provides eviction of the persons in unauthorised occupation on public land.
High Court obviously preferred earlier statute to apply in the contextual
facts, rather than later statute, but that can not however be accepted as fair
reading of the law and the fact-situation of the matter in issue. In this
context, section 12 of the Act of 1976 ought to be noticed. Section 12
Act to override other laws.
The provisions of this Act shall have effect notwithstanding anything contained
in any other law for the time being in force, or in any contract, express or
implied, or in any custom or usage to the contrary.
particular and without prejudice to the generality of the fore-going
provisions, the West Bengal Public Land (Eviction of Unauthorised Occupants)
Act 1962 shall not be applicable to any premises to which this Act applies.
overriding effect of the Act thus can not be whisked away as adumbrated above.
Needless to record here that the principal section 12 stands re-numbered as
sub-section 1 and sub-section 2 has been inserted by West Bengal Act 30 of
1985. Statutory intent thus stand clarified that the Act of 1962 shall not be
applicable to the government premises to which the Act of 1976 applies. The
definition of Government premises within the meaning of Section 2(A) as noticed
above is rather of widest possible amplitude. The discussions in the impugned
judgment do not show that it was the case of any of the parties that the
building in question is not Government premises as defined in the Act of 1976.
In sub-section (2) of Section 12 the legislature has clearly laid down that the
Act of 1962 shall not be applicable to any premises to which this Act (Act of
1976) applies. The conclusion therefore is inescapable that any proceeding for
eviction of unauthorised occupants of the premises in question has to be
initiated only under the Act of 1976.
judgment of the High Court is in conflict with the express statutory provision
in Section 12 (2) of the Act of 1976. Therefore, the High Court clearly erred
in holding that the proceeding under the Act of 1976 was not maintainable and
that proceeding for eviction, if any, may be taken under the Act of 1962. In
any event, by reasons of specific finding of the High Court as to whether the
Writ Petitioner can at all be said to be tenants in respect of the premises
under the heirs of S.K. Ghose or V.C. Sood is not the concern of the Appellate
Bench, the finding or at least the recording of observation about the non
applicability of the Act of 1976 does not and can not arise.
view the High Court is clearly in error having regard to the finding as
recorded therein in the judgment impugned before this Court. In any event, the
effect of Section 12 of the Act of 1976 has not been noticed at all and the
interpretation offered and the meaning imputed to the words used in the 1976
legislation, in our view has been totally mis-placed.
wake of the aforesaid, we are unable to record our concurrence with the
judgment under appeal Considering, however the duration of occupation being for
quite a number of years, we deem it fit in the interest of justice to allow the
respondents herein to vacate the premises by 31st October, 2001. It is placed
on record that this order is passed without however any prayer for the same
being made by the respondents. The extension of time is granted in terms of
this order, however shall be subject to filing of the usual undertaking before
this Court within a period of four weeks in default of which the appellant
would be at liberty to take steps in accordance with law. The appeals are thus
allowed. The judgment of the High Court thus stands set aside. Parties to bear