WA 197/2007 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B.LOKUR HON’BLE MR JUSTICE U. B. SAHA (MADAN B. LOKUR, CJ) This appeal is directed against a judgment and order dated 29-1- 2007 passed by a learned Single Judge in WP(C) No.1679/2000 directing the Gauhat i Municipal Corporation (for short the GMC ) to vacate the premises in its occu pation of respondent No.1, Institute of Child Health and Mother Welfare (for sho rt the Institute ) within a period of four months. 2. Broadly, the facts of the case are that a Charitable Trust by th e name of Guwahati Public Hospital Trust purchased a plot of land covered by P eriodic Patta No.121 and Dag Nos.517 and 528 measuring about 3 Bighas along with a pucca house in Sarania village, Mouza Panbari in Kamrup district. The objecti ves of the Trust included establishing and maintaining a modern and up-to-date h ospital at Guwahati for maternity and child welfare with facilities for training of nurses and midwives. 3. The Trust constructed a two storied RCC building on its land and used it as a maternity home. Subsequently it was unable to manage its affairs, apparently due to some financial difficulties and, therefore, it transferred and land and building to the Government of Assam for opening a child welfare and tr aining centre. In the deed of transfer it was clearly stipulated that in the eve nt the Government of Assam ceases to use the said land and building for any purp ose other than for establishing a maternity, child welfare and training centre, the said land and building shall revert back to the Trust. 4. The Government of Assam entrusted the management of the maternit y home of the Trust to the Gauhati Medical College which maintained it but subse quently converted it into residential accommodation for doctors and nurses. Sinc e this was apparently in conflict with the transfer deed, the Trust requested th e Government of Assam by a letter dated 18-12-1974 to hand over the land and bui lding so that it could make alternative arrangements to maintain and run a mater nity home and child welfare centre. 5. It is in this background that in February, 1979 the Trust wrote to the Government of Assam to hand over the land and building to the Institute t o enable it to run an indoor and outdoor medical treatment centre for children a nd mothers. It appears that after some prolonged correspondence between the Inst itute and the Government of Assam and the Gauhati Medical College, possession of the building was handed over to the Institute some time in August, 1981. 6. According to the Institute the building (maternity home) was in a dilapidated condition and, therefore, the Institute made some renovations to i t and by an agreement dated 9-11-1982 the Trust transferred the land and buildin g to the Institute. It is in these circumstances that the Institute claims right , title and interest over the property in question, namely the land situated in Sarania village, Mouza Panbari in Kamrup district as well as the building constr ucted thereon, as mentioned above. 7. It is averred that to the surprise of the Institute, it received two notices on 29-5-85 from the Deputy Commissioner, Kamrup (Land Acquisition B ranch) to the effect that the building belonging to the Gauhati Medical College was requisitioned by the district administration for the Kamrup District Rural D evelopment Agency with effect from 29-5-1985 and another notice showing handing over and taking over the building pursuant to the requisition. 8. The Institute protested against the requisition and entered into prolonged correspondence with the district administration for de-requisitioning the building. 9. While this correspondence was going on, according to the Institu te, the GMC illegally and unauthorisedly occupied the building some time in earl y 1990 and established the Birth and Death Registration Office therein. 10. The Institute reiterated its representations to the district adm inistration for de-requisitioning the building while simultaneously negotiating with the GMC for vacating the building. 11. Eventually, in a meeting convened by the Minister, Municipal Adm inistration Department on or about 15-10-1992, the GMC agreed to vacate the buil ding in two phases - the first phase of shifting would be completed before 19-10 -1002 and the second phase within three months thereafter. 12. Unfortunately, the GMC did not vacate the building as per the sc hedule, nor were any steps taken by the district administration to de-requisitio n the building. On the contrary, on 13-10-1995 the Commissioner, GMC wrote to th e Institute that the building was handed over by to the GMC by the Additional De puty Commissioner, Kamrup in 1990 and that the Institute had nothing to do with the building and, therefore, no correspondence in this regard would be entertain ed from the Institute. 13. Faced with this situation, the Institute nevertheless continued its efforts with the Government of Assam to have the land and building vacated a nd ultimately by a letter dated 15-12-1995 the Deputy Commissioner, Kamrup infor med the Commissioner, GMC that since the Institute requires the building for its use as office premises, the GMC should vacate it without any delay. This, accor ding to the Institute, was a recognition of its rights over the land and buildin g. 14. The letter dated 15-12-1995 sent on behalf of the Deputy Commiss ioner, Kamrup to the Commissioner, GMC reads as follows :- To The Commissioner Gauhati Municipal Corporation, Guwahati. Sub : Vacating the Building of the Child Care and Mother’s Welfare Sanstha, si tuated at Ulubari. Sir, With regard to the above matter, it is understood that the Building of t he Children & Mother’s Welfare Sanstha is under your occupation, as is evident f rom the application forwarded by Dr. Jogen Bhuyan. But the actual documents rega rding requisition in this regard are not available in our office. Be that as it may, although the aforesaid house was accepted by you, at present it is required by the Sanstha for their use as office premises and as such it is to be vacated without any delay. Please treat this matter as urgent. Sd/- For the D.C. Kamrup, Ghy Memo No.KRA-22/93/93-4/24534 dt 15-12-95 15. Even after the above letter, no steps were taken by the GMC to v acate the building, leaving the Institute with no option but to prefer a writ pe tition as mentioned above which was allowed by the judgment under appeal. 16. At this stage, it is important to note two facts : (1) There is some dispute with regard to the right, title and interest of the Institute in the property in question inasmuch as one Shri Madhav Ram Bora has instituted a title suit being T.S. No.39/85 in the Court of the Asstt District Judge No.2 at Guwahati for restraining the Institute from entering and staying over the suit p roperty being the land and RCC building constructed thereon. Yet another title s uit being T.S. No.304/92 has been filed by one Shri Mahadev against the Institut e which is pending in the Court of the Asstt District Judge No.1 in Guwahati for a declaration of right, title and interest on the suit land and building constr ucted thereon. (2) The GMC did not contest the proceedings before the learned Si ngle Judge by filing any counter affidavit even though sufficient time had elaps ed in this regard, as mentioned in the order under appeal. As such, the facts pl eaded by the Institute were not controverted. 17. Before us, it was submitted that the writ petition raises disput ed questions of fact with regard to the right, title and interest of the Institu te in the land and building constructed thereon and as such the learned Single J udge was in error in issuing a direction to the GMC to hand over possession of t he land and building to the Institute. It was brought out in this regard that th ere are title suits pending which effectively challenge the right, title and int erest of the Institute to the said land and building. It was argued that the lea rned Single Judge ought to have waited for the disposal of the two title suits. It was also contended that the Institute had made out no case for interference a nd, therefore, their writ petition ought to have been dismissed at the threshol d. It was submitted in this context that the Deputy Commissioner, Kamrup had ear lier stated in the notice dated 25-5-1985 that the building had been requisition ed for the use of the Kamrup District Rural Development Agency and about ten yea rs later it was stated in the letter dated 16-12-95, on the basis of an applicat ion made by one of the trustees of the Institute, that the GMC should vacate the premises in its occupation. 18. We are not in agreement with any of the submissions made for and on behalf of the GMC. It is quite clear from a reading of the documents on reco rd that the land with the Trust was transferred to the Government of Assam on ce rtain conditions. Since the Government had breached an essential condition, the Trust then transferred the land and building thereon to the Institute. The GMC u ndoubtedly came in occupation of the building on the land, but in the absence of anything having been stated by the GMC as to how it came into possession of the building, it must be accepted that the GMC did so without any authority of law, as alleged by the Institute. Under the circumstances, the GMC has no right to r emain in the land and building of the Institute. 19. Even if it assumed that the GMC came in possession of the buildi ng through the Government of Assam, the State Government could, through the dist rict administration, require the GMC to vacate the building in its possession an d hand it over to the Institute. This is precisely what was done through the let ter dated 16-12-1995 written by the Deputy Commissioner, Kamrup to the Commissio ner, GMC. 20. Therefore, whichever way one looks at the issue, the GMC has no option but to hand over vacant possession of the building, which houses its offi ces, to the Institute subject, however, to the ultimate decision of the two titl e suits (T.S.No.39/85 and T.S. No.304/92) which may perhaps still be pending. [W e have not been informed of the latest position in these two cases]. 21. The learned Single Judge has merely directed the Commissioner, G MC to comply with the orders issued by the Deputy Commissioner, Kamrup and we se e no reason to interfere with that direction subject, however, to the decision o f the two suits mentioned above. The GMC clearly has no right to remain in the b uilding in its occupation regardless of whether it belongs to the Institute or t he Government of Assam. This is because the GMC has not been able to show anythi ng at all as to how it came into lawful possession of the building in question. 22. In the light of the above facts, we are not inclined to interfer e with the impugned judgment and order. We find no merit in the writ appeal and it is accordingly dismissed. 23. Time is given to the GMC to hand over vacant and peaceful posses sion of the building in its occupation in Sarania village, Mouza Panbari in Kamr up district within a period of six months from today and in any case on or befor e 31-7-2011.