ontempt Petition No 71 of 1990
AND Interlocutory Application No 1 of 1990
IN Writ Petition Civil No 1 1222 of 1983
Under Article 32 of the Constitution of India
Shanti Bhushan Bashant Bhushan Bohla Prasad Singh for the Petitioner
Kapil Sibal Additional Solicitor General Ashok H Desai Solicitor General Tapas Roy Ratin Das and DK Sinha for the Respondent
The Judgment of the Court was delivered by KANIA J
Seth Mannalal Surana Memorial Trust is the owner of a building situate at 7ID Lindsay Street Calcut ta one of the busiest streets in Calcutta where the New Market is situated
The petitioner is the lessee of the said building from the said Trust
On February 25 1958 a por tion of the ground floor premises in the said building admeasuring 4198 Sq
referred to hereinafter as the said premises was requisitioned by the Government of West Bengal under the West Bengal Premises Requisition and Con trol Temporary Provisions Act 1947 hereinafter referred to as the West Bengal Act
The purpose for which the said premises were requisitioned was establishing the main show room of West Bengal Handicraft Development Corporation Limited a West Bengal Government Undertaking
The said show room is called Manjusha and has become a landmark in Calcutta
In HD Vora vs State of Maharashtra and Others  this Court held that the provisions for 248 requisition could be resorted to only where premises were required for a temporary purpose but not where they were required for a permanent purpose
If premises were required for a permanent purpose they have to be acquired in accord ance with law
Following upon this decision the petitioner filed the aforesaid Writ Petition No 1 1222 of 1983 in this Court praying for a mandatory order directing that the premises should be derequisitioned and handed over to the petitioner
Certain interim applications were made in this Court and orders were passed thereon to which it is not necessary to refer in this Judgment
By an order dated January 16 1990 certain directions were given to respondent No 4 in the writ petition
The relevant portion of the said order runs as follows In view of the earlier orders we direct respondent No 4 to hand over the possession of the premises in question to the petitioner within nine weeks from today subject to their obtaining any order from the Calcutta High Court in the appeal pending in that Court against the decision of a learned Single Judge in WP No 2063 of 1987 or acquiring any independent right to retain possession of the suit premises within that period
It is contended by Shri Shanti Bhushan learned coun sel for the petitioner that as the respondents have not succeeded in obtaining any order from the Calcutta High Court in the said appeal or in acquiring any independent right to retain possession of the said premises within the period of nine weeks from January 16 1990 as set out in the said order they were bound to hand over the possession of the said premises to the petitioner and have committed contempt as they have deliberately failed to do so
We find that it is not possible to accept the submis sion set out hereinabove
On February 21 1990 the Govern ment of West Bengal issued a notification under section 4 of the Land Acquisition Act as applicable to the State of West Bengal declaring its intention to acquire the said prem ises
On February 27 1990 the said declaration was duly published
By the beginning of March 1990 the declaration under section 6 of the Land Acquisition Act in respect of the said premises was duly made and published and on 1st of March
1990 the Government of West Bengal authorised the First Lanisition Collector to take possession of the said premises under section 171 of the Land Acquisition Act
Public notices were given on 9th March 249 1990
A few days later the trustees of the said trust which owned the said building filed a writ petition in the Calcut ta High Court challenging the validity of the acquisition proceedings in respect of the said premises which had been initiated consequent upon the amendment of the Land Acquisi tion Act as applicable to the State of West Bengal and on 20th March 1990 the Calcutta High Court directed the status quo to be maintained regarding possession
It is clear that unless the said order dated March 20 1990 is vacated it is not possible for the respondents to proceed with the acquisition and acquire title to the prem ises
The contention of the learned counsel for the peti tioner is that the acquisition is patently bad in law as it is not open to the Government to acquire the said premises on the ground floor of the said building without acquiring the corresponding area on the upper floors
It was submitted by him that such acquisition would be clearly bad in law in spite of the amendment carried out to the provisions of Land Acquisition Act as applicable to the State of West Bengal by the insertion of Section 49 A therein by Land Acquisition West Bengal Amendment Act 1986 which came into force on February 14 1990 after obtaining the consent of the Presi dent of India
Section 49A permits acquisition of a part of a house
In our view the question whether the acquisition is valid or not is pending for decision in the Calcutta High Court in the said writ petition filed by the said trust as owner of the building challenging the validity of the said amendment
In our opinion before a party can be committed for contempt there must be a wilful or deliberate disobedience of the orders of the Court
In the present case we do not find that any such wilful or deliberate or reckless disobe dience of our order dated January
16 1990 has been com mitted by the respondent to the contempt petition
Hence the contempt petition is dismissed
There will be no order as to costs
We hope that the Calcutta High Court will be able to dispose of the said writ petition challenging the validity of the said amendment as early as possible
Interlocutory Application No 1 of 1990 in writ petition No 11222 of 1983 is not pressed and is allowed to be with drawn with liberty to renew the same if any occasion arises
Although we are of the view that the respondent has not commit 250 ted contempt we do realise that in case the petitioner succeeds in the writ petition the respondent would have remained in possession of the said premises for a long time after they should have handed over the possession of the same to the petitioner
We find that the respondent has already been directed to pay compensation for the use of the said premises at the rate of Rs 15000 per month by an order of this Court passed over two years earlier
We direct that the respondent shall deposit in addition an amount of Rs 10000 per month commencing from 1st October 1990 in the Court the first of such deposits to be made on or before 20th October 1990 and deposits for each succeeding month to be made by 15th day of each succeeding month
The amounts deposited shall be invested by the Registrar General at suitable intervals in a nationalised bank in fixed depos it after consulting the parties


Summary:
The appellants instituted a representative suit in the court of the learned Subordinate Judge against the respond ents inter alia praying for framing a scheme for a public charitable trust
On the same day an application was made in the court praying for leave to institute the suit as required under section 92 of the Civil Procedure Cede
The Court granted leave without issuing any notice to the re spondents
Thereupon the respondents filed an interim application before the Court for revoking the leave granted inter alia on the ground that the respondents had not been given any opportunity to be heard before leave was granted
The learned Subordinate Judge dismissed the said application on the ground that the grant of leave was an administrative act of the Court and no notice to the respondents was re quired before the grant of such leave
The respondents preferred a Civil Revision Petition in the High Court which was allowed
The learned Single Judge took the view that as the leave had been granted without any notice to the respondents it was void and liable to be set aside
Before this Court it was contended on behalf of the appellants that if tile court were required to give an opportunity to the defendants to be heard before granting leave under section 92 the grant of leave would entail a great deal of delay and might defeat the ends of justice where some urgent relief was required
It was also urged that at the time when the court considered whether to grant leave it was only the averments in the plaint which had to be examined and hence the presence of the defendant was not necessary
It was further submitted that if a defendant had a grievance against the grant of leave he could always make an application to revoke the same and no prejudice would be caused to the defendant by the grant of leave
267 On behalf of the respondents it was submitted that the court could not decide whether leave should be granted or not without giving an opportunity to the defendants who could point out the reasons why leave should not be granted
Allowing the appeals and directing the Trial Court to dispose of the application for revocation of leave on merits and in accordance with law this Court HELD 1 A plain reading of section 92 of the Civil Procedure Code indicates that leaves of the court is a pre condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section unless all the beneficiaries join in institut ing the suit if such a suit is instituted without leave it would not be maintainable at all
275B C 2 Having in mind the objectives underlying section 92 and the language thereof it appears that as a rule of caution the court should normally unless it is impractica ble or inconvenient to do so give a notice to the proposed defendants before granting leave under section 92 to insti tute a suit
The desirability of such notice being given to the defendants however cannot be regarded as a statutory requirement to be complied with before leave under section 92 can be granted as that would lead to unnecessary delay and in a given case could cause considerable loss to the public trust
275C E 3 If a suit is instituted on the basis of such leave granted without notice to the defendants the suit would not thereby be rendered bad in law or non maintainable
The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law
275G TN Shanmugam and Others vs The Periyar Self Respect Propaganda Institution and Others 1984 II MLJ 440  Swami Parmatmanand Saraswati  Anr
vs Ramji Tripathi  Anr   795 Charan Singh  Anr
vs Darshan Singh and Ors
   Mahant Pragdasji Guru Bhagwandasji vs Patel Ishwarlal Bhai Narsibhai and Others   Prithipal Singh vs Magh Singh and Others AIR 1982 Punjab  Haryana 137 Lachhman Dass Udasi deceased by L RS and Others vs Ranjit Singh and Others
AIR 1987 Punjab and Haryana 108 I V Mathew vs KV 268 Thomas
AIR 1983 Kerala 5 Mayer Simon Perur vs Advocate General of Kerala  Ambrish Kumar Singh vs Raja Abhushan Bran Bramhshan and Others AIR 1989 All 194 and Gurdwara Prabandhak Committee Delhi Cantonment and Others vs Amarjit Singh Sabharwal and Others  referred to
4 Although clause ffa of section 1041 of the Code of Civil Procedure provides that an appeal shall lie against the refusal of grant of leave that cannot lead to the conclusion that it is obligatory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal and not the grant of leave
275H 276A