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The State of West Bengal represented by the Secretary, Department of Fisheries & Another v/s M/s. Bansilal Leisure Parks Ltd. & Another

    C.O. No. 3396 of 2017

    Decided On, 18 July 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioners: Abhrotosh Majumdar, T.M. Siddiqui, Ayan Banerjee, Nilotpal Chatterjee, Advocates. For the Opposite Parties: Saktinath Mukherjee, Samit Talukdar, Amiya Narayan Mukherjee, Dip Narayan Mukherjee, Advocates.



Judgment Text

1. The State of West Bengal, represented by the Secretary, Department of Fisheries and by the Collector, North 24 Parganas, has preferred the instant application under Article 227 of the Constitution of India against an order dated September 16, 2017, whereby the Civil Judge (Senior Division), Sixth Court at Alipore allowed an application filed by the plaintiff/opposite party no. 1 for restoration of possession of the suit property.

2. The dispute relates to the 'Nalban Fisheries', located in the Eastern Suburbs of Kolkata. The Government of West Bengal requisitioned 800 acres of land including the said Fishery and took over possession of the land on November 8, 1969 under the provisions of Act 2 of 1948. On September 27, 1979, the Director of Fisheries, Government of West Bengal, handed over possession of the said Fisheries to the opposite party no. 2, being the State Fisheries Development Corporation Limited, a wholly‐owned undertaking of the Government of West Bengal, allegedly to carry out pisciculture and allied activities. Subsequently upon the opposite party no. 2 publishing an open invitation to set up a public entertainment and tourist project at Nalban, the opposite party no. 1 approached opposite party no. 2 and a licence agreement was entered into between opposite party no. 1 and 2 on March 12, 1991 for the purpose of setting up such project. Such agreement was renewed with modified terms and conditions vide another agreement between the same parities dated September 23, 1998. The agreement was entered into primarily for setting up a boating complex, on the surface water area of the project.

3. In terms of clause 2 of the said agreement, which is set out below, certain rights were given to the opposite party no. 1:

"2. AND WHEREAS it is mutually agreed that the Company will be allowed to use appertaining land of the project for general activities of their project and may set up temporary and permanent structures for use of it's office ticket counters, guard room, gates, boundary wall, fencing, electrification, Restaurants, Snacks counters, Beautification, Structures etc., and may also set up jetty or platform for its boating purpose upon the embankments adjacent to the water surface. The Company may also use the land area for the purpose of beautification by planting trees etc., without hampering pisciculture in any way. The plants and walls however shall become the property of the Corporation and the party of the Second part will never prefer any claim for such plants and forestry in any shape or form for whatsoever."

4. The agreement also contained a renewal cl

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ause, which included the right of the State Government to withdraw the rights of the opposite party no. 1 over the water area. Such clause is set out below:

"3. THAT THE COMPANY shall have the right to use the surface water area and the appertenant land for running of the tourist cum boating complex with the right of renewal every fifth year by enhancement of fees upto five percent. The right will vest upon the company purely as Licenses and this will never create any other right or interest such as tenant or and lessee or any other right whatsoever of the Corporation. However, the right of the Company as Licence shall immediately stand ceased automatically without any reference, in case the right of the Corporation over the water area is withdrawn by the Government for any reason whatsoever and the Company shall not be entitled to prefer any claim for compensation for such termination of the agreement."

5. On April 1, 2010, the agreement dated September 23, 1998 was renewed for a period of thirty years, extending the operative period of the agreement till the year 2040, upon enhancement of licence fees to the tune of Rs. 3 lakhs per month, subject to a five percent increment every fifth year. Thereafter, apparently, there were certain communications between the parties and ultimately, on April 10, 2013, the Joint Secretary to the Government of West Bengal issued a notice to the Managing Director of the opposite party no. 2, requesting the latter to arrange handing over of possession of the Nalban Fisheries to the Department of Fisheries, State of West Bengal.

6. This was followed by the Managing Director of opposite party no. 2 communicating to the Additional Chief Secretary, Department of Fisheries that possession of the Nalban Fisheries had been handed over to the Assistant Director of Fisheries, North 24 Parganas on April 22, 2013 in pursuance of a memo dated April 10, 2013 of the Department of Fisheries, Government of West Bengal.

7. Meanwhile, on April 20, 2013, the opposite party no. 1 filed a suit against the petitioners as well as the opposite party no. 2 a suit, bearing Title Suit No. 80 of 2013, in the Second Court of Civil Judge (Senior Division) at Barasat, inter alia for a decree of declaration that the plaintiff‐company/opposite party no.1 had every legal right or authority to run business over the property‐in‐suit and for permanent injunction restraining the defendants and/or their men and agents from disturbing the plaintiff's peaceful possession over the suit property and/or from running the plaintiff's business over the same and/or from causing any disturbance or hindrance hampering the plaintiff's business over the suit property and/or from causing any demolition work within the suit property and/or from changing the nature and character of the suit property. Such suit was subsequently transferred to Sixth Court of Civil Judge (Senior Division), at Alipore and renumbered as Title Suit No. 49 of 2015.

8. The opposite party no. 2 (State Fisheries Development Corporation Limited), subsequent to institution of the said suit, sent a notice dated April 23, 2013 to the opposite party no. 1, purportedly cancelling the licence agreement dated September 23, 1993 in terms of clause 3 therein.

9. Meanwhile opposite party no. 1 filed a writ petition, bearing W.P. No. 12681 (W) of 2013 against the notice dated April 23, 2013 issued on behalf of opposite party no. 2 invoking clause 3 of the relevant agreement. A co‐ordinate bench of this Court dismissed the said writ petition on April 30, 2013 on the ground that the petitioner therein had already approached the Civil Court, which was competent to grant complete relief, observing that the said order would not preclude the petitioners to obtain appropriate orders from the appropriate Court and that if an approach on that behalf was made, the Court should decide the controversy uninfluenced by dismissal of the writ petition. A challenge was taken out against such order, which culminated in the concerned Division Bench directing the Trial Court to decide upon an injunction application filed by the opposite party no. 1 in connection with its suit, as referred to hereinabove, by May 17, 2013.

10. The Trial Court, vide order dated May 17, 2013 passed in the suit, granted temporary injunction restraining the defendants therein, their men and/or agents from disturbing the occupation and lawful actions of the plaintiff / opposite party no. 1 over the suit property till disposal of the suit.

11. The present petitioners preferred against such order a miscellaneous appeal, bearing Miscellaneous Appeal No. 107 of 2013. The said appeal was ultimately allowed on contest vide order dated April 23, 2014 passed by the Additional District Judge, Fifteenth Court at Alipore, thereby setting aside the order of injunction dated May 17, 2013 passed by the Trial Court.

12. On the very next date, that is, April 24, 2014, the District Magistrate and Sub‐Divisional Officer, Bidhannagar apparently handed over possession of Nalban to the Deputy Director of Fisheries (Kolkata Zone) and Assistant Director of Fisheries, North 24 Parganas.

13. The opposite party no.1 preferred against the order dated April 23, 2014, passed in the aforementioned miscellaneous appeal, a revision bearing C.O. No. 1375 of 2014. A co‐ordinate bench of this Court, vide order dated September 17, 2015, allowed the said revisional application, thereby setting aside the order of the Additional District Judge. Several observations were made by this court in the said order dated September 17, 2015. It was inter alia observed by the learned Single Judge that the plaintiff was in possession of the suit property and had filed the suit, wherein the trial court protected its possession by an order of temporary injunction upon hearing both parties, directing the opposite party not to disturb the peaceful possession and carriage of business of the plaintiff; but as soon as the said order of the trial court was set aside, the State took action with the help of men and agents to get the premises barricaded so that the plaintiff could not run its business. The learned Singly Judge was of the considered view that the issue of recovery of possession could be taken up in the facts of the case by the plaintiff/petitioner on an application, if submitted before the trial court under the provisions of Section 151 of the Code of Civil Procedure, as in the instant case the plaintiff could not file a separate suit under Section 6 of the Specific Relief Act. It was further observed that the said Court, by an order dated April 25, 2014, had prima facie observed that the State Authorities tried to take possession by encircling the property with police personnel and preventing the petitioner from entering into the premises. It was also observed that there was rival contention of the parties as to them being in respective possession and the said Court had passed an order restraining the State from taking any further step in respect of the subject property till April 30, 2014. The Bench of the learned Single Judge went on to hold, it found that a serious issue was involved in the suit and it was desired that an order of status quo in respect of the suit premises be enforced in terms of the order of that Court.

14. Subsequently, the said order of the learned Single Judge was challenged by way of a special leave petition, which was dismissed on the observation that the Hon'ble Supreme Court found no justification whatsoever for interfering with the impugned order. The Hon'ble Supreme Court was, however, satisfied with granting liberty to the petitioners to file their written statement before the trial court, if permissible in law. In such eventuality, it was held, it would open to the petitioners to raise all pleas that were available to them in accordance with law.

15. Upon the opposite party no. 1 filing an application on January 20, 2016, under Section 151 of the Code of Civil Procedure for restoration of possession, the trial Judge dismissed such application on April 22, 2016.

16. The opposite party no. 1 preferred a revisional application against such dismissal, giving rise to C.O. No. 2270 of 2016. Another co‐ordinate bench of this Court, by its order dated September 21, 2016, allowed the revision and directed the trial Judge to reconsider the application filed by the opposite party no. 1 under Section 151 of the Code of Civil Procedure, in the light of the observation made therein.

17. Upon a special leave petition being filed against the said order, the same was disposed of without interfering with the order of this Court, inter alia permitting the petitioners to raise all pleas that were available to them in accordance with law before the concerned court.

18. The application for restoration of possession was accordingly heard afresh and ultimately was allowed by the Civil Judge (Senior Division) Sixth Court at Aliproe vide order no. 71 dated September 16, 2017, directing the defendants to restore the possession of the suit property to the plaintiff within fifteen days from the date of the order. Being aggrieved by the said order, the present revisional application has been preferred by the State of West Bengal, represented by the Secretary, Department of Fisheries and the Collector, North 24 Parganas at Barasat.

19. The petitioners argue that the position became crystallised by virtue of the order dated September 17, 2015 passed by the learned Single Judge in C.O. No. 1375 of 2014. It is argued on the basis of the said order that the intention of the learned Single Judge was that status quo in respect of the suit property, as found by the Court on April 25, 2014 was to be enforced. The status on the said date was admittedly that possession was with opposite party no. 1 but the State had barricaded the suit property, thereby restraining the opposite party no. 1 to enter the suit property through its men and agents. It is argued that the same position was maintained by the order passed by another learned Single Judge in the subsequent revision bearing C.O. No. 2270 of 2016. Since such position has attained finality, it is argued the trial court acted without jurisdiction in violating the observations of this Court, made in both the revisions, by directing possession to be restored to the opposite party, thereby virtually granting the relief of status quo ante.

20. It is further submitted on behalf of the petitioners that since the license in favour of the opposite party no. 1 was already terminated by invoking Clause 3 of the licence agreement, the opposite party no. 1 could not, in any event, run its business at the suit property. Relying on the said clause, as set forth above, it is argued on behalf of the petitioners that the State had an unfettered right to terminate the agreement at any point of time without assigning any reason whatsoever, which had been exercised by it. As such, the State had been barricading the property to prevent the opposite party no. 1 from carrying on business in the teeth of the termination of its licence by the State. It is argued that the opposite party no. 1 has only of late filed an application for amendment of the plaint to incorporate a challenge to the notice of termination and the amendment has not yet seen the light of day; hence status quo as of today ought to be maintained and the direction to restore possession, given by way of the impugned order, ought to be set aside.

21. On the other hand, it is submitted on behalf of the opposite party no. 1 that the order passed in the first revision, bearing C.O. No. 1375 of 2014, it was made clear that the opposite party no. 1 was entitled to restoration of possession. The learned Single Judge had all but granted such restoration and only just stopped short of doing so, leaving the said task to the trial court, upon the opposite party no. 1 making an appropriate application.

22. It is further argued by learned Senior Advocate appearing for opposite party no. 1 that even if there was no order of injunction restraining the present petitioners from dispossessing the opposite party no. 1 on the day of dispossession, the absence of such an injunction did not ipso facto entitle the petitioners to dispossess the opposite party no. 1 from the suit property without following due process of law. It is submitted that there could not be conceived any such extreme urgency on the part of the petitioners which would prompt them to dispossess the opposite party no. 1 within a day of the injunction order of the trial court being set aside in appeal. Hence, such action was rightly deprecated by the trial court in the impugned order, consequentially directing restoration of possession.

23. Learned Senior Advocate appearing for the opposite party no. 1 cites several judgments in this context.

24. The first cited judgment was reported at LI Indian Appeals 293 (Midnapur Zamindary Company Limited vs. Naresh Narayan Roy and others). In such judgment it was held inter alia that in India, persons are not permitted to take forcible possession; they must obtain such possession, as they are entitled to, through a Court.

25. Learned Senior Advocate for the opposite party no. 1 next cites the judgment reported at AIR 1968 SC 620 (Lallu Yeshwant Singh vs. Rao Jagdish Singh and others). In the said judgment, the Hon'ble Supreme Court followed several previous judgments and reiterated the conclusion arrived at in the Midnapur Zamindary's case (supra).

26. The next judgment cited by opposite party no. 1 was reported at (1990) 2 SCC 117 (Dorab Cawasji Warden vs. Coomi Sorab Warden and others). In the said case, certain guidelines for granting interlocutory mandatory injunctions were formulated by the Hon'ble Supreme Court.

27. The opposite party no. 1 next cites the judgment reported at (1996) 4 SCC 144 (Samir Sobhan Sanyal vs. Tracks Trade Private Ltd and others). In the said judgment, the Hon'ble Supreme Court held inter alia that a person in possession of a property cannot be dispossessed without due process of law. The appellant's dispossession without any decree or order of eviction in the said case was held unlawful, being without due process of law.

28. The next judgment cited on behalf of opposite party no. 1 is the celebrated Division Bench judgment of this Court, authored by Sir Asutosh Mookerjee, reported at XIX CLJ 47(Israil vs. Shamser Rahman). In the said case, despite having full knowledge of institution of the suit and filing of a temporary injunction application, the defendants had raised substantial construction on the suit property. The Division Bench not only granted temporary injunction restraining further erection of the building, but also directed that the building already erected be taken down.

29. The judgment next cited on behalf of the opposite party no. 1 was reported at AIR 1989 SC 2097 (Krishna Ram Mahale (dead) vs. Mrs. Shobha Venkat Rao) in which it was held by the Hon'ble Supreme Court inter alia that no person could be dispossessed unlawfully behind their back.

30. Learned Senior Advocate for the opposite party no. 1 next cites a judgment reported at (2011) 4 SCC 602 (Gangadhara Palo vs. Revenue Divisional Officer and another), in support of the proposition that the order passed by the learned Single Judge in C.O. No. 1375 of 2014, as well as that passed in C.O. No. 2270 of 2016, merged with the order of dismissal of the respective special leave petitions arising therefrom.

31. The next argument advanced on behalf of the opposite party no. 1 is that, clause 3 of the licence agreement was itself not tenable in the eye of law. This was because the said clause violated the basic ternate of law in civilized society, that the State, even in its private transactions and contracts, had to act reasonably and upon lawful and relevant grounds of public interest. The State could not resort to arbitrary and discriminatory action. An administrative action was open to judicial review on the ground of "malice in law". Such principle also governed commercial contracts entered into by the State or its instrumentality. The State had to act reasonably and could not be sponsoring arbitrary and mala fide action even in the field of private law and contractual relationships. In support of the said proposition, the following judgments are cited on behalf of the opposite party no.1:

i. (1989) 3 SCC 293 (M/s Dwarkadas Marfatia and sons vs. Board of Trustees of the Port of Bombay.

ii. (1990) 3 SCC 752 (Mahabir Auto Stores and others vs. Indian Oil Corporation and others).

32. Upon hearing both sides and considering the material facts, it appears that the State took advantage of the temporary injunction granted by the trial court being set aside in appeal. Within a day from the order of the appellate court, the State proceeded in hot haste to barricade the suit property with men and machines, thereby denying the opposite party no. 1 even the minimum opportunity to prefer a challenge to the order of the appellate court. The instrumentalities of the State went so far as to prepare a certificate of possession, which was handed over, thereby trampling whatever rights the opposite party no. 1 had in the property in dispute.

33. The order of the learned Single Judge in C.O. 1375 of 2014 was a speaking one, where the learned Single Judge specifically observed that the issue of recovery of possession could be taken up in the facts of the case by the plaintiff on an application under Section 151 of the Code of Civil Procedure. Although it was observed in the said order that it would be desired that an order of status quo in respect of the suit premises be enforced in terms of that court's order, such observation was followed by setting aside the order of the appellate court and restoring the injunction order passed by the trial court, whereby the trial court had restrained the defendants, their men and/or agents from disturbing the plaintiff companies occupation and lawful actions over the suit property till disposal of the suit. This apart, the learned Single Judge had also granted liberty to the present opposite party no. 1 to approach the trial court with an application for restoration of possession.

34. A similar order was passed by a different coordinate bench in CO No. 2270 of 2016, which was also affirmed by the Hon'ble Supreme Court. If read as a whole, the said orders of this Court could only indicate that it was the intention of this Court that the order of the trial court was to be restored fully. In view of the interim dispossession of opposite party no. 1, this court permitted the opposite party no.1 to approach the trial court for restoration of possession and simultaneously protected the opposite party no.1 from further action of the State.

35. It would be absurd to interpret such orders to mean that, in the same breath, this Court granted opposite party no. 1 the liberty to seek restoration of possession and to bind it to the status quo as was prevalent after such dispossession.

36. As to the argument advanced by the petitioners that the State had exercised its option of termination of the licence given to the opposite party no. 1 by invoking clause 3 of the relevant agreement, such clause itself is itself under the scanner in the suit, in view of the very unreasonable and arbitrary nature of the said clause. The State obviously was in a position of advantage when handing over the said agreement and misused such advantage to incorporate the patently partial clause that the State was permitted to terminate the contract on any ground whatsoever, including, theoretically, any whimsical and arbitrary reason suitable to the State officials. The argument, that the amendment challenging the notice of termination was still inchoate, does not apply to logic, since the suit, in its original form, already incorporated a declaration that the plaintiff had every legal right or authority to run business over the property in suit. Implicit within such declaration is a challenge to the notice of termination of licence. Even irrespective of a specific challenge to the notice of termination, the court had to incidentally decide the issue as to whether the notice of termination of the plaintiff's right to run business over the property was legally valid, while deciding the plaintiff's entitlement to a declaration of his right to run business. A necessary corollary of such adjudication would be a consideration of the legality of any affront to such right to run business, including the invocation of Clause 3 of the relevant agreement. This apart, the notice to terminate the license was issued during pendency of the suit and thus could not be challenged in the original plaint. The effect of such event would, in any event, be governed by the result of the suit.

37. What irks judicial conscience most is the high‐handed modus operandi adopted by the State in barricading the suit property within a day of the trial court's injunction order being vacated and the extreme urgency demonstrated by the State (which promptness is mostly lacking in various other essential spheres) in shutting out the opposite party no. 1 from the suit property. The circumstances indicate unerringly at least to malice‐in‐law, if not malice‐in‐fact.

38. Despite the vacating of the injunction order, the State could not, in effect, dispossess the opposite party no. 1 by barricading the suit property, without due process of law. Even a trespasser has to be evicted under Indian law by taking recourse to due process of law. Such unreasonable and arbitrary behaviour of the State, which is supposed to be impersonal and rational, gives rise to a presumption of mala fide and arbitrary action, which is deplorable under any circumstance. It has been uniformly laid down in the cited decisions that no person can be evicted without due process of law and that in case of illegal dispossession, the court's hands are not tied in doing complete justice by directing restoration of possession.

39. Precisely such course of action was adopted by the trial court in the impugned order by directing restoration of possession to opposite party no. 1. Hence there does not appear to be any fault or jurisdictional error on the part of the trial court in passing such order. In fact, the trial Judge ought to be lauded for being bold enough to pass such an order instead of shying away on the pretext of technicalities, which is often a malady afflicting the judicial system.

40. In such view of the matter, the impugned order does not call for any interference.

41. Accordingly C.O. No. 3396 of 2017 is dismissed on contest, thereby affirming the impugned order, being Order No. 71 dated September 16, 2017 passed by the Civil Judge (Senior Division), Sixth Court at Alipore in Title Suit No. 49 of 2015.

42. There will be no order as to costs.

43. The opposite party no. 1 is given the liberty to approach the Trial Court for appropriate orders to ensure compliance of the order impugned herein in the event the said order is not complied with by the petitioners and/or opposite party no. 2 within a fortnight from this date.

44. However, it is made clear that the observations made in this order are final only for the purpose of deciding the application of the opposite party no. 1 for restoration of possession, under Section 151 of the Code of Civil Procedure, and the trial Court will be free to decide the suit itself independently on its own merits, without being influenced by such observations.
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