Hooghly Parks And Resorts Llp vs The State Of West Bengal & Ors
2021 Latest Caselaw 4159 Cal

                                      1

                      W.P.A. No. 11085 OF 2020
                  IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                            Appellate Side

                      Hooghly Parks and Resorts LLP
                                    Vs.
                      The State of West Bengal & Ors.

For the Petitioners          : Mr. Saptangsu Basu, Advocate
                               Mr. Ayan Banerjee, Advocate
                               Mr. Mrinalini Majumdar, Advocate


For the State                : Mr. Susovan Sengupta, Advocate
                               Mr. Subir Pal, Advocate


 Hearing
   and                       : August 9, 2021
Judgment on

DEBANGSU BASAK, J.:-


          1.

Petitioner is aggrieved by a decision dated November 10,

2020 passed by the Additional District Magistrate (Development),

Hooghly dated November 10, 2020.

2. Learned senior advocate appearing for the petitioner

submits that, the petitioner obtained lease of an immovable property

from the State Government by virtue of a Deed of Lease dated July 1,

2017. He draws the attention of the Court to the various clauses of

the Lease Deed. He submits that, the petitioner is obliged to perform

certain responsibilities in terms of the Lease Deed. Performance of

such responsibilities involves money. The petitioner, therefore,

expended huge sum of money in order to perform such obligations.

The premises was requisitioned by the State Government by a writing

dated April 29, 2021 purporting to invoke Section 34 of the Disaster

Management Act, 2005 (Act of 2005). He draws the attention of the

Court to the provisions of Section 34 of the Act of 2005. He submits

that, Section 34 does not empower the authorities to requisition the

immovable property. According to him, Section 65 empowers the

authorities to do so. Thereafter, he draws the attention of the Court

to the provisions of Section 66 of the Act of 2005. He submits that,

once an immovable property is requisitioned under Section 65 of the

Act of 2005, the authorities are required to pay compensation in

respect of such requisition under Section 66 of the Act of 2005.

There must be an award under Section 66 for the petitioner to invoke

the first proviso of Section 66 in the event, the petitioner is aggrieved

by the award of compensation of the authorities. He draws the

attention of the Court to the writing dated November 10, 2020 by

which, the Additional District Magistrate (Development), Hooghly

purported to hold that the petitioner will be entitled to rent remission

for the period of requisition. He submits that such a writing cannot

be construed to be an award within the meaning of Section 66 of the

Act of 2005 for the first proviso therein to be invoked by the

petitioner. He seeks appropriate relief with regard thereto.

3. State is represented. Learned Advocate for the State

submits that the petitioner gave up his statutory right under Section

66 in writing.

4. The petitioner and the State Government entered into a

lease in respect of an immovable property on July 1, 2017. There are

reciprocal obligations to be performed by the parties in terms of the

Lease Deed entered into between the petitioner and the State

Government. There are covenants in the Lease Deed which requires

performance of certain obligations by the petitioner which entail

expenditure of money.

5. The immovable property in respect of which the lease is

subsisting was requisitioned by the State Authorities on April 29,

2020. In the letter of requisition dated April 29, 2020, the State

Authorities quoted Section 34 of the Act of 2005 as the empowering

section to requisition such immovable property. Wrong recording of a

Section of a statute will not vitiate the action provided the power to

requisition is otherwise available. The Act of 2005, as rightly pointed

out by the learned Senior advocate for the petitioner, empowers the

Central and the State Authorities to requisition an immovable

property under Section 65 of the Act of 2005. The relevant provision

of Section 65 of the Act of 2005 is as follows:

"65. Power of requisition of resources, provisions, vehicles, etc. for rescue operations, etc.

(1) If it appears to the National Executive Committee, State Executive Committee or District Authority or any officer as may be authorised by it in this behalf that--

(a) any resources with any authority or person are needed for the purpose of prompt response;

(b) any premises are needed or likely to be needed for the purpose of rescue operations; or

(c) any vehicle is needed or is likely to be needed for the purposes of transport of' resources from disaster affected areas or transport of resources to the affected area or transport in connection with rescue, rehabilitation or reconstruction,

Such authority may, by order in writing, requisition such resources or premises or such vehicle, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning."

6. Section 66 provides the modality of payment of

compensation. Section 66 of the Act of 2005 are as follows:

"66. Payment of compensation.--

(1) Whenever any Committee, Authority or officer, referred to in sub-section (1) of section 65, in pursuance of that section requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely:--

(i) the rent payable in respect of the premises, or if no rent is so payable, the rent payable for similar premises in the locality;

(ii) if as consequence of the requisition of the premises the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change:

PROVIDED that where any person interested being aggrieved by the amount of compensation so determined makes an application within the thirty days to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, may determine:

PROVIDED FURTHER that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred by the Central Government or the State Government, as the case may be, to an arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, for determination, and shall be determined in accordance with the decision of such arbitrator.

Explanation: In this sub-section, the expression "person interested" means the person who was in actual possession of the premises requisitioned under section 65 immediately before the requisition, or where no person was in such actual possession, the owner of such premises.

(2) Whenever any Committee, Authority or officer, referred to in sub-section (1) of section 65 in pursuance of that section requisitions any vehicle, there shall be paid to the owner thereof compensation the amount of which shall be determined by the Central Government or the State Government, as the case may be, on the basis of the fares or rates prevailing in the locality for the hire of such vehicle:

PROVIDED that where the owner of such vehicle being aggrieved by the amount of compensation so determined makes an application within the prescribed

time to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, may determine:

PROVIDED FURTHER that where immediately before the requisitioning the vehicle or vessel was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as an arbitrator appointed by the Central Government or the State Government, as the case may be, in this behalf may decide."

7. The immovable property in respect of which the

petitioner enjoys the lease was requisitioned for the period from April

30, 2020 to July 31, 2020. The petitioner claims compensation in

respect of such requisition. Such demand of compensation was

considered and the decision thereon was communicated to the

petitioner by the letter dated November 10, 2020. By the impugned

decision, Additional District Magistrate (Development), Hooghly

informed the petitioner that the petitioner is entitled to rent

remission in respect of such property only. The authority did not

consider the other amount that the petitioner expended during the

requisition period. The petitioner is aggrieved by such decision.

8. The petitioner raises an issue that the impugned decision

dated November 10, 2020 does not fall within the four corners of

Section 66(1) of the Act of 2005 so as to trigger the first proviso of

such section.

9. With the deepest of respect, I am unable to accept such

contentions of the petitioner. Section 66(1) requires the authority

requisitioning the property to pay compensation to the persons

interested. It lays down the modality of calculation of the

compensation payable. The first proviso of Section 66(1) of the Act of

2005 stipulates that, in the event, a person interested in the

compensation is aggrieved by the amount of compensation

determined under Section 66(1) can make an application within

thirty days to the State Government, for referring the matter to an

Arbitrator.

10. As noted above, the issue is whether the impugned

decision dated November 10, 2020 of the Additional District

Magistrate (Development), Hooghly can be construed to be an order

under Section 66(1) of the Act of 2005 for the first proviso therein to

trigger. The petitioner applied for compensation. The petitioner is a

person interested in the payment of compensation for the requisition.

The Requisitioning Authority considered such request for

compensation and passed an order on November 10, 2020. The first

part of Section 66(1) of the Act of 2005 mandates the Requisitioning

Authority to pay compensation to the persons interested in the

compensation. The manner for calculating the compensation payable

is also provided. In the facts of the present case, the decision to pay

compensation was communicated to the petitioner. The letter dated

November 10, 2020 comes within the parameters of Section 66(1) of

the Act of 2005. It allows a sum of Rs. 1,65,000/- to be deducted

from the rent payable by the petitioner to the State under the Lease

Deed. It is a decision to pay compensation to the petitioner who is a

person interested to receive compensation and therefore comes

within the purview of Section 66(1) of the Act of 2005. In the event,

the petitioner is aggrieved by such decision, it would be for the

petitioner to avail of the procedure prescribed thereafter under

Section 66(1) of the Act of 2005, that is to say that, the petitioner is

required to apply to State Government within thirty days from the

date of the order of compensation for referring the matter to the

Arbitrator. The petitioner did not do so.

11. The impugned order is not vitiated due to lack of

jurisdiction or is unreasoned or passed in breach of principles of

natural justice. Challenge to the impugned order despite existence of

statutory alternative remedy therefore cannot be sustained. The

petitioner did not specify the date of receipt of the impugned order in

the writ petition. However, by an electronic mail dated December 14,

2020 the petitioner asked the State Authorities to release the Bills for

payment of rent so that the petitioner can commence making

payment. This mail can be construed to mean that the petitioner

accepted the quantum of compensation specified in the impugned

order dated November 10, 2020. There is nothing on record to

substantiate that the petitioner disputed the quantum of

compensation contemporaneously or asked for arbitration within 30

days from the date of receipt of the impugned order dated November

10, 2020.

12. The Act of 2005 provides a mechanism to decide upon

the quantum of compensation payable as also an elaborate

mechanism for redressal of any grievance with regard thereto. The

same can be held to be statutory alternative remedy available to a

person interested in compensation. A Writ Court need not interfere

with regard to quantum of compensation payable.

13. Moreover, there are disputed questions of fact involved

in the calculation of the quantum of compensation payable. Such

disputed questions of fact are best left to be decided by the authority

prescribed under the Act of 2005.

14. In such circumstances, I find no merit in the present

writ petition.

15. WPA No. 11085 of 2020 is disposed of without any

order as to costs.

16. Urgent certified website copies of this order, if applied

for, be made available to the parties upon compliance of the requisite

formalities.

[DEBANGSU BASAK, J.]