Calcutta High Court

Orient Paper And Industries ... vs State Of West Bengal on 27 September, 2023

           IN THE HIGH COURT AT CALCUTTA
            CIVIL APPELLATE JURISDICTION
                           ORIGINAL SIDE

                            APO 25 OF 2023
                           IA No. GA 1 of 2023
                           WPO 1502 of 1995


           Orient Paper and Industries Limited & Anr.
                                   Vs.
 State of West Bengal, Through the Secretary, Department of
                     Land and Land Reforms & Ors.



Before:          The Hon'ble Justice Arijit Banerjee
                               &
                 The Hon'ble Justice Apurba Sinha Ray


For the Appellants          : Mr. Siddhartha Banerjee, Adv.
                              Mr. Souradeep Banerjee, Adv.
                              Ms. Sanjana Sinha, Adv.
                              Mr. Mainak Chandra, Adv.


For the Respondent No. 5    : Mr. A.K. Chatterjee, Sr. Adv.

Mr. Indrajit Dasgupta, Adv.

For the State               : Mr. Supratim Dhar, Adv.
                              Mr. Paritosh Sinha, Adv.
                              Mr. Arindam Mondal, Adv.

Judgment On                 : 27.09.2023





Apurba Sinha Ray, J. :-


Factual Matrix

1. The predecessor-in-interest of the Appellant-company became the

owner of the occupancy right over the relevant property situate in the

Barrackpore Cantonment under the Old Grants Act, 1836 in due compliance

of the relevant provisions. Subsequently, the said property was requisitioned

under West Bengal Premises Requisition and Control (Temporary Provisions)

Act, 1947 ('the 1947 Act' in short hereinafter) for a limited period but as the

appropriate authority did not derequisition even after the expiry of the said

period, the predecessor of the appellant initiated writ proceedings being

WPO No. 3805 of 1992 challenging the action of the State Respondents in

continuing with the possession of the property and in refusing to handover

vacant and peaceful possession even after the expiry of the prescribed period

of requisition.

2. In the said writ petition as well as in the consequential contempt

proceedings the State Respondents were directed to handover peaceful

vacant possession of the relevant property to the appellant's predecessor

after derequisitioning the same. Subsequently, derequisition order was

passed on 10.08.1994 and Additional Superintendent of Police, North 24

Parganas was requested to make over possession of the said premises on

25.11.1994.

3. It is alleged that in spite of having issued and published the order for

derequisition, the State Respondents deliberately neglected to deliver vacant

and peaceful possession of the said property in favour of the appellant's

predecessor. Moreover, it is also alleged that after suppressing the fact of

issuance of derequisition order, the State Respondents misled the Court by

submitting that they have initiated a process of acquisition of the premises

in question and sought sufficient time for completion of the process.

Subsequently, the State Respondents represented to the Court they had

completed the process of acquisition and accordingly the Hon'ble Court

passed an order dated 24.01.1995 holding that the application being WPA

No. 3805 of 1992 had become infructuous and hence the same stood

withdrawn.

4. Subsequently, the appellant's predecessor-in-interest came to know

that the State Respondents issued notice under Section 4 of the Land

Acquisition Act, 1894 ('the Act 1894' in short hereinafter) dispensing with

the requirement of publication of notice under Section 5A of the Act, by

invoking provisions under Section 17(4) of the Act, 1894.

5. In this round of litigation, the present writ petition being WPO 1502 of

1995 was filed by the appellant's predecessor on the ground, inter alia, that

the State Respondents had acted arbitrarily by invoking the emergency

provisions though there was no valid or cogent ground to adopt such

procedure.

6. In the meantime, the appellant-company stepped into the shoes of its

predecessors-in-interest and its name has been duly substituted in the

proceedings. During course of the proceeding, on 03.02.2022 the Hon'ble

Single Judge directed the State Respondents to come up with a proposal

whether they were agreeable to return the land comprised in the said

premises to the petitioners on payment of compensation or to purchase the

land directly from the writ petitioners at the present market rate. The said

order was challenged before the Division Bench but in vain. However, the

Learned Single Judge was requested to consider all submissions made by

the parties and to take appropriate decision in the matter.

7. After the matter was remanded back to the Learned Single Judge, the

respondent no. 5, being the Defence Estates Officer, Kolkata Circle,

Government of India, representing the Union of India filed an application in

the present writ petition being G.A. No. 4 of 2022, praying for, inter alia,

addition of several parties indicated in para 17 of the said application in the

array of respondents on certain grounds.

8. After contested hearing, the Learned Single Judge allowed the prayer

of the respondent no. 5, and hence this appeal.

Submission from the Bar

9. According to the appellants' learned Counsel, Mr. Siddhartha

Banerjee, the factual basis and reliefs sought for in the writ application were

not properly considered, and though the presence of Union of India is not

necessary in the facts and circumstances of the case, the Learned Single

Judge allowed the prayer for addition of parties without considering the fact

that the appellants being the writ petitioners have their choice of

respondents to be impleaded in the said petition and thereby unnecessarily

widened the scope of the writ petition.

10. The appellants further contend that the prayer for addition of parties

should have been rejected by the Learned Single Judge since the application

was filed more than 27 years after initiation of the writ proceedings, and the

reliefs sought for in the writ application, if allowed, would not prejudice the

Union of India in any manner.

11. Learned Senior Advocate Mr. Ajay Krishna Chatterjee, appearing for

the respondent no. 5 has argued that Union of India's application was under

Order I Rule 10(2) of the Civil Code of Procedure, 1908 which envisages the

power of the court to add proper and necessary parties and this power of the

court is not curtailed by the provision laid down under Order I Rule 3 of the

Code. Learned Counsel also pointed out that the presence of Union of India

is required for the purpose of proper adjudication and decision in respect of

the issues involved in the writ petition. The prayers made in the writ petition

were for delivering possession of a bungalow in favour of the writ petitioner.

The Union of India cannot be left out from the present litigation since it is

the actual owner of the relevant land and therefore it is a necessary party.

Learned Counsel of the Union of India has also drawn the attention of the

court to paragraph 15 of the writ petition at page 17, wherein the title of

Union of India in respect of the relevant land was under challenge. It is

further argued that Union of India was not claiming any compensation in

the writ petition by way of counter-claim or otherwise, and therefore, there is

no legal and valid reason for objecting to the prayer for addition of parties in

the writ proceedings. The Learned Counsel also challenged the

maintainability of the present appeal.

12. Learned counsel has also drawn the attention of this court to page no.

23 of the Indenture dated 01.05.1949, order dated 03.02.2022, order dated

17.02.2022 and order dated 07.03.2022.

Legal Basis of Submission:-

13. Learned counsel for the appellants has referred to several case laws in

support of his contention. According to him a party is not a proper party if

no relief is claimed against him. He cited the decision reported at (2020) 13

SCC 773 (Gurmit Singh Bhatia Vs. Kiran Kant Robinson & Ors.). He has

also relied on the case law reported at (1992) 2 SCC 524 (Ramesh Hira

Chand Kundanmal Vs. Municipal Corporation of Greater Bombay & Ors.)

in support of his submission that a necessary party or proper party is one

who must have direct or legal interest in the litigation. Learned Counsel for

the appellants has referred to the case law reported at (2022) 4 SCC 328

(Union of India Vs. Bharati Airtel Limited & Ors.) to buttress his view that

when action of the States or Union Territories are not under challenge by the

writ petitioner but a policy decision of the State authority is under challenge,

non-impleadment of the State/Union Territory would not be fatal for the writ

petitioner. Learned counsel also submitted that if the right of a party is

finally decided in an interlocutory order then the same can be treated as

judgment, and, therefore, an appeal can be preferred under clause 15 of the

Letters Patent. In this present case the Union of India has appeared more

than 27 years after the initiation of the litigation and the order allowing

them to be impleaded in the writ proceeding has seriously affected the rights

of the appellants. In this regard the learned counsel has referred to case

laws reported at (2018) 11 SCC 722 (Life Insurance Corporation of India

Vs. Sanjeev Builders Pvt. Ltd. & Ors.), (2006) 5 SCC 399 (Midnapore

Peoples' Coop. Bank Limited & Ors. Vs. Chunilal Nanda & Ors.), (1981) 4

SCC 8 (Shah Babulal Khimji Vs. Jayaben D. Kania & Anr.). He has also

argued that the word 'judgment' should be construed in a broader sense and

not in a narrow one. In this regard he has also drawn the attention of this

court to the case of Shah Babulal Khimji (supra) wherein the Hon'ble

Supreme has been pleased to hold that judgment can be of three kinds

namely a final judgment, a preliminary judgment and intermediary or

interlocutory judgment.

14. The appellants' counsel has drawn the attention of this court to the

case law reported at (2002) SCC OnLine Cal 77 (P & I Services Pvt. Ltd.

Vs. Board of Trustees for the Port of Calcutta & Ors.) wherein the Hon'ble

Division Bench took the broader view of the expression 'judgment' and did

not follow the limited meaning given to the said expression in the case of

Suprakash Das Vs. Indian Tea Licensing Committee, reported in 45

CWN 454. By referring to the decision reported in (2004) 9 SCC 512

Liverpool and London S.P.& I Association Limited Vs. M.V. Sea Success

I & Anr.), Learned Counsel for the appellants has submitted that clause 15

of the Letters Patent is not a special statute only in a case where there exist

an express prohibition in the matter of maintainability of an intra-court

appeal, the same may not be held to be maintainable. But in the event there

does not exist any such prohibition and if the order will otherwise be a

'judgment' within the meaning of clause 15 of the Letters Patent, an appeal

shall be maintainable. He has also referred to the case reported in (2005)

SCC Online Cal 229 (Lyons Corporate Market Limited & Ors. Vs. Uma

Gupta & Ors.) in support of such contention.

15. Learned counsel for the respondent Union of India, on the other hand,

has categorically argued that the question of being affected or prejudiced

does not arise since as per the provisions of Order I rule 10 of the Code of

Civil Procedure, the Hon'ble Single Judge thought that Union of India is a

proper party. It is also argued that as the relief for delivery of vacant

possession was prayed for, the Union of India is entitled to participate in the

writ proceedings since its title to the property was denied by the appellants.

Learned Counsel has referred to case laws reported at AIR 2004 Gauhati 73

(Tractor and Firm Equipment Limited, Chennai Vs. Secretary to

Government of Assam, Department of Agriculture, Gauhati & Ors.) and

AIR 2002 Andhra Pradesh 77 (Repaka Bhyravamurthy & Anr. Vs.

Muppidi Venkataraju & Ors.) in support of his contention.

16. In reply, learned counsel for the appellants submitted that Union of

India may be the owner of the land but it has no interest in the litigation and

therefore is not a necessary party. In this regard learned counsel has

referred to case laws reported at Gurmit Singh Bhatia (Supra), Union of

India (Supra) and Ramesh Hirachand Kundanmal (Supra).

Court's view

17. In so far as the question of maintainability of the appeal is concerned,

we are of the view that since by the impugned order the learned Single

Judge has finally decided the issue of entitlement of the Union of India to

have certain parties added in the writ petition, taking a broader view of the

word "judgment", the impugned order qualifies as a judgment within the

meaning of Clause 15 of the Letters Patent. After all, a plaintiff/petitioner is

the dominus litis. He is entitled to decide whom he wants to add as

defendants/respondents. Addition of a party by the Court surely interferes

with such right of a person initiating a lis. He may legitimately feel aggrieved

if the Court adds to the array of defendants/respondents as the same, inter

alia, may tend to enlarge the scope of the concerned legal action. Hence, I

hold the appeal to be maintainable.

18. It is true that no relief is claimed in the writ petition against the Union

of India and the record further shows that the appellants' predecessor's

property was requisitioned under the Act, 1947, in the year 1965 and in

spite of expiry of the period for which the requisition was made, the property

was not given back to the appellant's predecessor. The writ petition was filed

in the year 1992 praying for issuance of relevant writs for delivering vacant

possession in favour of the appellant's predecessors, but in vain. During the

pendency of such writ petition the Hon'ble Court was moved from the side of

the State Respondents to impress upon the Hon'ble Court that the

Government was willing to acquire the property and on such prayer being

made, the Hon'ble Court allowed the State Respondents to proceed with

such proposed acquisition proceeding.

19. Therefore, from the above, it is crystal clear that it is not the

appellant's predecessor who prayed for acquisition of land. On the other

hand, their initial prayer was for issuance of necessary order for

derequisitioning the relevant property and also for getting the vacant,

peaceful possession of the same. Therefore, the appellants cannot be said to

have taken any steps for initiation of the acquisition proceedings which were

in fact, the outcome of the submission of the state respondents.

20. Subsequently, it is found that vacant possession of the property was

not delivered even after passing of order for derequisition and it is also found

that acquisition proceeding was started by issuing notice under Section 4 of

the Act, 1894 and emergency provision under Section 17(4) of the said Act

was invoked and thereafter, the appellant's predecessor filed the present writ

application claiming peaceful vacant possession of the property. Therefore,

in both the writ petitions essentially the reliefs claimed by the appellants'

predecessors were that the possession of land which was requisitioned

under the Act, 1947 should be delivered in favour of the appellants. In fact,

this litigation has a chequered history. It is an admitted fact that the

concerned property was requisitioned from a person who had purchased the

occupancy right from its erstwhile owner for valuable consideration after

obtaining necessary permission from the Government of India. As the

possession of the said property was not returned back to its owner even after

the expiry of the period of requisition, the owner of the occupancy rights had

certainly the right to pray for necessary relief(s) for getting back the said

property and therefore the Union of India cannot be said to have any interest

in such reliefs. If the reliefs, as claimed in the writ petition, were limited to

the occupancy right of the appellant's predecessor or the appellants itself,

there would not have been any problem. But unfortunately it appears that

the appellant's predecessor did not assist the Hon'ble Court at the relevant

time, that is, when the acquisition proceeding was ordered to be proceeded

with, by disclosing that the appellant's predecessor was not the actual owner

of the land in question. Moreover, it is also found that the Learned Single

Judge directed the State Respondents on 03.02.2022 to come up with a

proposal whether they were agreeable to return the land comprised in the

said premises to the petitioners on payment of compensation or to purchase

the land directly from the writ petitioners at the present market rate. It

appears that at that time also the present appellants did not disclose that

they are not the actual owners of the land in question and therefore the

State Respondents cannot purchase the land directly from the present

appellants at the present market rate or otherwise.

21. In my considered opinion, this non-disclosure of the actual ownership

to the land by the present appellants has a serious legal consequence since

it goes to show that right, title and interest of the Union of India in respect of

such land was being denied indirectly by the present appellants.

22. Moreover, if we go through the pleadings in the writ petition we shall

find that the right, title and interest of the Union of India in respect of such

land has been specifically denied by the present appellants. It is found from

paragraph 15 of the writ petition that the State Respondents in the previous

writ proceedings tried to divulge that the appellant's predecessor was not the

actual owner of the land by taking such plea in the relevant matters. But the

appellants' predecessors denied such statement. For the purpose of proper

understanding, paragraph 15 of the Writ Petition being No. 1502 of 1995 is

reproduced herein below:

"Your petitioners state that from the said application your petitioners found that a prayer had been made therein seeking further six months' time to acquire the said premises, However, it was conveniently suppressed therein that on 10/11th August, 1994 the Government of West Bengal had de-requisitioned the said premises by a letter dated 24th November 1994. The respondent No.3 (who incidentally was also an Applicant of the said petition) himself had forwarded the said order of de- requisition to the other Applicants, which fixed 25th November 1994 as the date for delivery of the said premises to the owners thereof, that is the petitioners. In furtherance of the said malafide and wrongful motive the Applicants of the said application (which included the said respondents herein) also deliberately mis-stated therein that the said premises was owned by the Ministry of Defence, Government of India. This patently false allegation was made in spite of being aware of the fact that if it is a Central Government property, which a Ministry of Defence property is, there is no right, authority or jurisdiction to requisition the same under the 1947 Act. No question of acquisition thereof also could arise under the said Act. It was also conveniently glossed over that the rent compensation under the 1947 Act for requisitioning of the said premises had been and were being tendered by the respondents and the said Superintendent to the petitioners, the landlord of the said premises within the meaning of the 1947 Act."

23. Therefore, it goes to show that the appellants' predecessor specifically

denied the right, title and interest of the Union of India in respect of the land

in question. When the Union of India's actual ownership to the land has

been specifically denied in a judicial proceeding and the Hon'ble Court was

not properly assisted from the side of the present appellants by disclosing

the actual ownership to the land, I do think that the Union of India has

certainly a right to take part in the relevant proceeding for the purpose of

proper adjudication and therefore it is a proper and necessary party. Even

though no relief is claimed against the Union of India, yet, in the factual

scenario as depicted above, I do think that the Learned Single Judge has

rightly exercised His Lordship's discretion by allowing the prayer of the

respondent, Union of India.