Calcutta High Court (Appellete Side)
Government Of West Bengal vs M/S. Maharshi Commerce Limited And … on 10 March, 2026
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
2026:CHC-AS:382-DB
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Supratim Bhattacharya
M.A.T. No. 1134 of 2025
IA No: CAN 2 of 2025
CAN 3 of 2025
Transportation, Planning and Traffic Engineering Directorate,
Government of West Bengal, Transport Department
Vs.
M/s. Maharshi Commerce Limited and Others
For the appellant : Mr. Sirsanya Bandopadhyay,
Sr. Standing Counsel,
Mr. Debopriyo Karan
For the respondent no. 1 : Mr. Avinash Kankani,
Mr. Sagnik Mukherjee
For the State : Mr. Pantu Deb Roy, AGP,
Mr. Asish Dutta
Heard on : 29.01.2026, 12.02.2026
19.02.2026 & 23.02.2026
Reserved on : 23.02.2026
Judgment on : 10.03.2026
Sabyasachi Bhattacharyya, J.:-
1. The Transportation, Planning and Traffic Engineering Directorate of the
Government of West Bengal, Transport Department, has preferred the
present appeal against the judgment dated May 21, 2025 passed by a
learned Single Judge of this Court in WPA No. 10640 of 2012. By the
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impugned judgment, the learned Single Judge set aside an order dated
June 24, 2011 passed by the respondent no. 4, the First Land
Acquisition Collector, Kolkata in Miscellaneous Case No. 02 of 2011 and
directed peaceful and vacant possession of the subject-premises to be
handed over in favour of the writ petitioner/respondent no. 1 within two
months from the order. A Special Officer was appointed to take symbolic
possession of the premises and the writ petitioner was granted liberty to
submit a comprehensive application to the respondent no. 2, the
Principal Secretary to the Government of West Bengal, Department of
Land and Land Reforms, seeking compensation for the period of illegal
occupation of respondent no. 6 (present appellant). It was directed that
upon submission of such application, the respondent no. 2 shall appoint
an Arbitrator within a period of four weeks from the date of the order and
referred the claim of the petitioner to the Arbitrator, whereupon the
Arbitrator was to pronounce such award towards compensation as
expeditiously as possible.
2. A query was posed by the court during hearing as to the maintainability
of the appeal at the behest of the appellant, being a Department of the
State and not the State itself, despite the State being a party to the
proceeding. In reply, learned Senior Standing Counsel, appearing for the
appellant, submits that the appellant, although a separate Directorate
under the State Government, is entitled to prefer an appeal in its
independent capacity, since the impugned judgment specifically directed
the appellant to quit and vacate the premises and arrived at categorical
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findings against the appellant. Accordingly, it is contended that the
present appellant is the party which is most affected by the impugned
judgment and, as such, has the locus standi to prefer the instant appeal,
even without the State preferring any appeal separately. That apart, the
appellant was arrayed separately as a party in the writ petition, although
the State was also one of the respondents. Thus, even the writ petitioner
treated the appellant on a separate footing than the State.
3. While assailing the impugned judgment, learned Senior Standing
Counsel contends that the writ petitioner/respondent no. 1 did not have
any locus standi to prefer the writ petition. It is submitted that although
initially a lease was entered into between the State of West Bengal (which
allotted the property to the appellant) and the original owner M/s. Hope
(India) Limited on February 23, 1984, before the lease expired on March
31, 1996, the property-in-question was requisitioned by the State on
March 14, 1996. The said requisition, however, was subsequently set
aside by an order dated December 24, 2001 passed in WP No. 805 (W) of
1996. Two appeals, preferred against the said order, were dismissed for
default.
4. It is submitted that a Scheme of Arrangement was sanctioned by this
Court in connection with a Company Petition in respect of various
properties, including the present subject-property, whereby the disputed
property was purportedly allocated to the writ petitioner/respondent no.
1-Company. It is argued that in the interregnum, as on March 31, 2008,
the right to sue of the writ petitioner/respondent no. 1 stood
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extinguished by operation of Section 27 of the Limitation Act, 1963
(hereinafter referred to as “the 1963 Act”). In support of the proposition
of extinguishment of the right of the respondent no. 1 on the lapse of
limitation fixed to institute a suit for possession of property, learned
Senior Standing Counsel cites Ravinder Kaur Grewal and others v. Manjit
Kaur and others, reported at (2019) 8 SCC 729.
5. Relying on Prem Singh and others v. Birbal and others, reported at (2006)
5 SCC 353, the appellant argues that limitation is a statute of repose. It
ordinarily bars a remedy but does not extinguish a right. However, the
only exception to the said rule is found in Section 27 of the 1963 Act,
which provides that at the determination of the period prescribed
thereby, the right of a person to sue for possession is extinguished.
6. It is argued that in order to avoid the bar under Section 27 of the 1963
Act, the respondent no. 1/writ petitioner resorted to Article 226 of the
Constitution of India. However, by merely changing the route from the
Civil Court to the Writ Court, such bar cannot be overcome.
7. Learned Senior Standing Counsel further contends that Article 226 of
the Constitution is not the appropriate remedy to establish title and such
power vests in the Civil Court. The High Court, it is argued, should not
exercise its special jurisdiction under the Constitution unless the
circumstances are exceptional. To strengthen such argument, learned
Senior Standing Counsel cites Anamallai Club v. Govt. of T.N. and others,
reported at (1997) 3 SCC 169 and Parvatibai Subhanrao Nalawade (Smt)
v. Anwarali Hasanali Makani and others, reported at (1992) 1 SCC 414.
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8. Learned Senior Standing Counsel next argues that although the
appellant may not have a right to continue in possession after the
termination of its tenancy, its possession is juridical and not “illegal”.
R.V. Bhupal Prasad v. State of A.P. and others, reported at (1995) 5 SCC
698 is cited by the appellant in support of such contention.
9. It is further submitted that the writ petitioner/respondent no. 1 sought
recovery of “rent payable” by filing WP No. 3552 (W) of 2010, which was
disposed of by a learned Single Judge of this Court, directing the Land
Acquisition Collector to dispose of the matter regarding the release of
“rent” to the petitioner.
10. Another writ petition, bearing WP No. 3815 (W) of 2010, was filed by
respondent no. 1 with regard to payment of electricity charges for the
subject-premise, which culminated in an order dated January 14, 2011,
granting the writ petition liberty to approach the Land Acquisition
Collector on the issue of de-requisition.
11. Thus, the respondent no. 1 assented to the continuance of the tenancy of
the appellant by claiming rent, hence conferring the character of legality
on such possession.
12. Learned Senior Standing Counsel further argues that the appointment of
Arbitrator by the learned Single Judge in the impugned order, without
the consent of parties, was de hors the law. The writ court could not
have appointed an Arbitrator unilaterally.
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13. The appellant contends that the argument that the writ petition is in
execution of the earlier order passed in a previous writ petition, made
before this Court, was neither pleaded nor made out in the writ petition.
14. In the Scheme of Amalgamation approved by this Court on June 10,
1998, the Calcutta Metropolitan Planning Organization is described as a
“tenant”. Change of ownership as landlord, it is submitted, cannot
change the nature of tenancy of the appellant. Therefore, at least till
June 10, 1998, the appellant was recognized as a tenant. Moreover, in a
letter dated May 14, 2005, written on behalf of the respondent no.1, the
possessed portion of the appellant has been described as the “tenanted”
portion. Hence, the overarching point, whether the Writ Court could
decide such disputed question of fact, including the title of the writ
petitioner, the type of tenancy of the appellant and the character of its
possession as well as quantity of damages, remains.
15. Learned counsel for the respondent no. 1, on the other hand, contends
that none of the judgments relied on by the appellant are germane for
the present consideration. It is argued that admittedly, the appeals
preferred against the order of the Writ Court setting aside the requisition
of the property were dismissed for default, respectively on July 21, 2003
(APO No. 43 of 2002) and July 3, 2006 (APO No. 130 of 2002).
16. Thus, the order of the Writ Court dated December 24, 2001 has attained
finality.
17. On November 21, 2002, it is submitted, the State of West Bengal
derequisitioned the entire premises covered by the Writ Court‟s order,
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except an area of approximately 4449 Sq. Ft. on the first floor of the
concerned premises. The derequisitioned portion was vacated and
handed over on June 27, 2003. As such, the balance portion of 4449 Sq.
Ft. is owned by the writ petitioner/respondent no. 1, which forms a part
of the total area of 9062 Sq. Ft. allotted to respondent no. 1. The
ownership of the said area by the writ petitioner/respondent is not
disputed by Poddar Udyog Limited and Poddar Projects Limited, who are
the allottees of the other portions. Learned counsel relies on declarations
issued by both the said companies stating that they do not have any
right, title or interest over the area of 9062 Sq. Ft., which solely belongs
to respondent no. 1. It is pointed out that the Land Acquisition
Collector, in Paragraph No. 4(iii) of its opposition, also stated that Poddar
Udyog Limited confirmed that the new owner of the premises under
requisition, occupied by the present appellant, is respondent no. 1.
18. It is next submitted that the earlier writ petitions filed by respondent no.
1 for release of rent compensation did not amount to consent of the
respondent no. 1 for the appellant to hold over the subject-property in
the capacity of a tenant. By dint of the Scheme of Arrangement and
Mutation Certificate, the disputed property indisputably belongs to the
respondent no. 1.
19. After the Writ Court‟s order setting aside the requisition and expiry of the
lease, the appellant has been rendered an unlawful occupant of the
property and the writ court, by the present impugned order, rightly
directed it to vacate possession immediately. It is submitted that the
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State of West Bengal, through the appellant, has failed to comply with
the order dated December 24, 2001 and is still in occupation of the
demised premises illegally and without any authority of law, in violation
of Article 300-A of the Constitution of India.
20. Learned counsel cites B.K. Ravichandra and others v. Union of India and
others, reported at (2021) 14 SCC 703, for the proposition that the right
to property is a valuable Constitutional right. It is submitted that the
State‟s long-term possession of the land without a formal lease or
acquisition is unconstitutional and the State‟s status stands reduced to
that of an unauthorised occupant.
21. Learned counsel next cites Punalur Paper Mills Ltd. v. W.B. Mineral
Development & Trading Corpn. Ltd. and others, reported at (2021) 14 SCC
528, for the proposition that this Court can appoint an Arbitrator for
computation of damages against illegal occupation.
22. Placing reliance on Union of India v. Shakuntala Gupta (dead) by LRs.,
reported at (2002) 7 SCC 98, learned counsel for respondent no. 1 argues
that in the said matter the Hon‟ble Supreme Court did not interfere with
the decision of the High Court appointing an Arbitrator to determine the
damages payable. Again, in Union of India and others v. Krishan Lal
Arneja and others, reported at (2004) 8 SCC 453, it was held that the
High Court did not lack authority to appoint an Arbitrator merely due to
the absence of a formal arbitration agreement and the lack of a specific
prayer in the writ petition. Similar appointments have been upheld by
the Supreme Court on previous occasions, expressly clarifying that an
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Arbitrator appointed by the High Court is empowered to issue an award
for the court‟s subsequent review. It is, thus, contended that the
appointment of Arbitrator in the present case was legally tenable.
23. Learned counsel for respondent no. 1 next cites General Radio &
Appliances Co. Ltd. and others v. M.A. Khader (dead) by LRs., reported at
(1986) 2 SCC 656, for the proposition that an order sanctioning
amalgamation of rights, interest and liabilities of the transferor company
transfers and vests the subject-property in the transferee company.
24. The respondent no. 1 relies on Vidya Devi v. State of Himachal Pradesh
and others, reported at (2020) 2 SCC 569, in support of the argument
that the State cannot be permitted to perfect it title over the land by
invoking the doctrine of adverse possession to grab the property of its
own citizens.
25. Again, in Dharnidhar Mishra (D) and another v. State of Bihar and others,
reported at (2024) 10 SCC 605, it was held that the plea of delay and
laches are inapplicable where the cause of action is of a continuing
nature or where the underlying facts are so egregious that it shocks the
judicial conscience.
26. In Bibekananda Mondal v. State of West Bengal, reported at 2002 SCC
OnLine Cal 571, it was held that a second writ petition is maintainable
for implementation of an earlier order of the writ court and the court
must issue proper direction for appropriate implementation of such
previous direction.
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27. It is, thus, contended that the present writ petition is in the nature of
implementation of the earlier order of the Writ Court directing the State
to derequisition and vacate the entire property which was subject to
such unlawful requisition.
28. It is contended in view of the order dated December 24, 2001 passed in
WP No. 805 (W) of 1996, the impugned order of the First Land
Acquisition Collector, giving rise to the present proceeding, was a nullity
in the eye of law. Since the order of requisition was set aside, the
Collector did not have any competence to adjudicate on such issues.
29. With regard to the applicability of Section 27 and Article 65 of the 1963
Act, learned counsel appearing for respondent no. 1 argues that such
fetters are not applicable to Article 226 of the Constitution of India,
particularly in view of the current writ petition having been filed merely
for implementation of the judgment and order dated December 24, 2001.
30. It is next contended that the instant proceeding is not a landlord-tenant
dispute but one for obtaining possession against the State of West
Bengal and others, whose entire action of requisition of the demised
premises was set aside and possession was directed to be handed over,
which order has attained finality.
31. Learned counsel for respondent no. 1 argues that the argument of the
appellant that the subject-property is being occupied with the consent of
the landlord, who has accepted rent, is fallacious and untenable as it is
contrary to the opposition filed by the First Land Acquisition Collector,
who has denied the title of the writ petitioner.
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32. It is further submitted that in view of the order of requisition being
quashed by this Court, the First Land Acquisition Collector did not have
jurisdiction over the subject-matter. In any event, it is argued that the
order approving the Scheme of Amalgamation passed by this Court was
placed before the said authority.
33. Thus, it is submitted that the appeal ought to be dismissed.
34. Before entering into the meat of the matter, the relevant facts leading to
the same are required to be noted.
35. On February 23, 1984, a lease deed was executed in favour of the State
of West Bengal by the original owner M/s. Hope (India) Limited for the
first and second floor of Premises No. 18, Rabindra Sarani, Kolkata – 700
001, for a period of 16 years from April 1, 1980, expiring on March 31,
1996.
36. Subsequently, by virtue of a Scheme of Amalgamation sanctioned by this
Court in connection with a Company Petition, the right, title and interest
of the said original owner was transferred and vested in Multiplex
Business Limited, which was further transferred to one Poddar Udyog
Limited with effect from June 17, 1998. Poddar Udyog Limited, the
transferee, filed a suit for eviction against the State of West Bengal,
bearing no. 1 of 1994, in view of the default in payment of lease rent.
37. However, to avoid the consequences of expiry of the lease on March 31,
1996, the State of West Bengal requisitioned the tenanted premises on
March 14, 1996 and notional possession was given on paper to the
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present appellant, in terms of such purported requisition, on March 22,
1996.
38. On June 10, 1998, a Scheme of Arrangement was sanctioned by this
Court in a Company Petition, by virtue of which various properties,
including the subject-property, was allocated between several entities,
including the Poddar Udyog Limited, Poddar Projects Limited, Hope
Cardamom Estate Limited, the respondent no. 1 and their shareholders.
39. On December 24, 2001, a learned Single Judge of this Court allowed WP
No. 805 (W) of 1996 and set aside the order of requisition, which decision
was initially stayed in appeal by a Division Bench. However, the two
appeals preferred against the order dated December 24, 2001, bearing
APO No. 43 of 2002 (old no. APOT No. 53 of 2002) and APO No. 130 of
2002 (old no. APOT No. 90 of 2002) were subsequently dismissed for
default on July 21, 2003 and July 03, 2006 respectively. The said
appeals were never restored. Thus, the order of the Writ Court dated
December 24, 2001 setting aside the requisition attained finality.
40. Meanwhile, the writ petitioner/present respondent no. 1 wrote to the
appropriate authorities for recovery of dues of electricity charges as well
as for rent compensation for the period of unlawful occupation by the
State through the appellant. Such claim, however, was refused.
41. A writ petition, bearing WP No. 3552 (W) of 2010, challenging the refusal
of the State-Authorities to pay Rs. 27,65,336/- as rent compensation for
the period between June 27, 2003 and March 31, 2009 ,was also filed by
respondent no. 1.
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42. Another writ petition, bearing WP No. 3815 (W) of 2010, challenging the
refusal of the State-Authorities to derequisition 4449 Sq. Ft. on the first
floor of the subject-premises, was also taken out.
43. It is relevant to mention here that although the State had derequisitioned
a substantial portion of the entire requisitioned property in terms of the
order of this Court dated December 24, 2001, the balance, comprised of
the present disputed property of 4449 Sq. Ft., was not derequisitioned
and possession of the same was continued to be retained by the
appellant.
44. WP No. 3553 (W) of 2010 was disposed of January 14, 2011 by directing
the First Land Acquisition Collector, Kolkata, to dispose of the matter
relating to release of rent compensation to the petitioner/present
respondent no. 1 by passing a reasoned order.
45. On the self-same date, WP No. 3815 (W) of 2010 was also disposed of by
directing the Land Acquisition Collector to dispose of the representation
of respondent no. 1 by passing a reasoned order.
46. Subsequently, the respondent no. 1 was heard by the Collector on
several occasions and on June 24, 2011, the First Land Acquisition
Collector, Kolkata forwarded his reasoned order to the respondent no. 1,
holding that the latter had failed to substantiate its claim as an absolute
owner and was not entitled to any rent.
47. WP No. 10640 (W) of 2012 was then filed, challenging the said order of
the Collector as well as seeking vacant possession of the subject-property
and recovery of rent compensation for the period of illegal occupation by
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the appellant. The same was disposed of on May 21, 2025, leading to
the present appeal.
48. The following issues fall for consideration in the appeal:
(i) Locus standi of the appellant to prefer the present appeal;
(ii) Locus standi of respondent no. 1 to file the writ petition from which
the present appeal arises;
(iii) Whether the writ petition was barred by Section 27, read with
Article 65, of the Limitation Act, 1963;
(iv) Whether the writ court acted without jurisdiction, in view of the
limited powers of the Writ Court to decide questions of title;
(v) Whether the appointment of Arbitrator by the impugned order was
illegal.
49. The Court decides the above issues in the following manner:
(i) Locus standi of the appellant to prefer the present appeal
50. The appellant cites an unreported co-ordinate Bench judgment of this
Court in MAT No. 1654 of 2023 [Block Development Officer and Another v.
Surajit Pramanick and Others].
51. It was held therein that if the valuable right of one of the parties is
decided by an order, such order is to be treated as a “judgment” within
the meaning of Clause 15 of the Letters Patent of this Court and is open
to a challenge in an intra-Court Appeal.
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52. However, the focal point of the said adjudication was whether the
impugned decision was a “judgment” within the contemplation of Clause
15 of the Letters Patent, and not the locus standi of the appellant as
such. Hence, the said judgment is not germane for the present
consideration.
53. In Midnapore Peoples’ Coop. Bank Ltd. and others v. Chunilal Nanda and
others, reported at (2006) 5 SCC 399, the Hon‟ble Supreme Court
categorically observed that the order impugned in the appeal in the said
case was passed in the course of contempt proceedings, issuing specific
directions on the Chairman and the Secretary-in-Charge representing
the Bank were specifically directed to do certain acts, by referring to
them as “the respondent-Bank”. Since the said officials were considered
as representing the Bank for issuing such directions, it was held that
they could file an appeal against the directions.
54. In our considered opinion, the present appellant stands on a better
footing than the appellants in the said case, inasmuch as the brunt of
the impugned judgment is not against the State of West Bengal but
against the appellant itself. Moreover, the appellant was arrayed
separately as a party to the writ petition in its independent capacity. It
is the appellant which is admittedly in possession of the subject-property
and was directed to vacate the same by the impugned order. Although
the rent compensation to be paid might ultimately come from the coffers
of the State, fact remains that the appellant is directly and substantially
affected by the impugned judgment.
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55. That apart, although merely a Department of the State, the appellant is a
Directorate in its own right, with its independent Director. Thus, a
semblance of autonomy is vested in the present appellant, entitling it to
maintain its own litigation in its own right and not merely through the
State.
56. In view of the above, this Court is of the opinion that the appellant has
the locus standi to maintain the present appeal.
(ii) Locus standi of respondent no. 1 to file the writ petition from
which the present appeal arises
57. By dint of the order dated June 10, 1998 sanctioning the Scheme of
Arrangement, passed in connection with a Company Petition, the
respondent no. 1 became the owner of a portion of the entire premises-
in-question.
58. In the said order, passed in Company Application No. 226 of 1997,
arising out a proceeding under Section 391(2), 392 and 394 of the
Companies Act, 1956, the portion allocated to respondent no. 1 was
categorically delineated.
59. The right, title and interest of the original owner in respect of a
demarcated 9062 Sq. Ft. of the subject-property was ultimately vested in
favour of the respondent no. 1 through its predecessor-in-interest,
Kolkata Metropolitan Planning Organization.
60. By dint of the expiry of the State‟s lease on March 31, 1996 and in view
of the requisition of the subject-property by the State having been set
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aside by the order dated December 24, 2001 passed in WP No. 805 (W) of
1996, a valuable right accrued in favour of the writ
petitioner/respondent no. 1 to seek possession of the subject-property
(which comprises a part of the 9062 Sq. Ft. allocated to it) and to
challenge the impugned order of the Land Acquisition Collector. In any
event, in the said order, the representation of the writ
petitioner/respondent no. 1 was rejected, holding it not to be the owner
of the subject-property. As such, the writ petition was very much
maintainable before this Court at the behest of the respondent no. 1
herein in view of the infraction of its ownership and associated rights.
(iii) Whether the writ petition was barred by Section 27, read with
Article 65, of the Limitation Act, 1963
61. The language of Section 27 of the Limitation Act, which has been relied
on vociferously by the appellant, is quoted hereinbelow:
“27. Extinguishment of right to property.–At the
determination of the period hereby limited to any person for
instituting a suit for possession of any property, his right to such
property shall be extinguished.”
62. However, Section 27 cannot be read in isolation. In the facts of the
present case, the said provision has to be read in conjunction with
Article 65 of the Schedule to the 1963 Act.
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63. Article 65 is also set out hereinbelow:
Description of Suit Period of limitation Time from which period
begins to run
65.For possession of Twelve years When the possession of the
immovable property or defendant becomes adverse
any interest therein to the plaintiff.
based on title.
Explanation.--For the
purposes of this article--
(a) where the suit is by a
remainderman, a
reversioner (other than
a landlord) or a
devisee, the
possession of the
defendant shall be
deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee,
as the case may be,
falls into possession;
(b) where the suit is by a
Hindu or Muslim
entitled to the
possession of
immovable property on
the death of a Hindu
or Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) where the suit is by a
purchaser at a sale in
execution of a decree
when the judgment
debtor was out of
possession at the date
of the sale, the
purchaser shall be
deemed to be a
representative of the
judgment-debtor who
was out of possession.
64. Section 27, by itself, does not create any right but provide a fetter to the
owner of the property to assert its ownership rights in respect of the
disputed property by dint of expiry of the limitation period for instituting
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a suit for possession. As recognised by the Hon‟ble Supreme Court in
Ravinder Kaur Grewal (supra)1, Section 27 is an exception to the general
rule of the law of limitation that although the edge of ownership for the
purpose of using it as a sword to seek eviction is blunted by expiry of the
limitation period, the substantive right of the owner is not automatically
extinguished. In cases where Section 27 is applicable, the right of the
owner to the property is itself extinguished, denuding the owner of its
ownership rights altogether.
65. In the present case, the appellant seeks to rely on the said provision in
conjunction with Article 65 of the Schedule to the 1963 Act. However,
the key word in the said Article, under the column stipulating the point
of commencement of limitation, is “adverse”. The Article contemplates
that the limitation period begins when the possession of the defendant
becomes adverse to the plaintiff.
66. It is only in such cases that the right is extinguished, both in terms of
Section 27 and the above decision.
67. Prem Singh and others (supra)2 merely reiterates the principle embodied
in Section 27 in general.
68. Learned Senior Standing Counsel himself, during arguments and in the
written notes of arguments filed by the appellant, reiterates that the
appellant is not claiming adverse possession but simultaneously relies on
Section 27, read with Article 65 of the 1963 Act. However, such
argument is a contradiction in terms, since the adverse nature of the
1
Ravinder Kaur Grewal and others v. Manjit Kaur and others, reported at (2019)
8 SCC 729
2
Prem Singh and others v. Birbal and others, reported at (2006) 5 SCC 353
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possession is a sine qua non for the limitation even to start under Article
65.
69. Apart from the appellant having not argued adverse possession and/or
pleaded the same at any point of time by specifically enumerating the
point of time since when the possession first became hostile and
uninterrupted against the true owner, the records bear out that the
possession of the State (which, in turn, allocated the property to the
appellant) commenced with a lessee. It is the inception of a jural
relationship which has to be considered for the purpose of determining
the character of possession. Once a lessee, an entity always remains a
lessee throughout the tenure of its lease and thereafter becomes a
„tenant-at-sufferance‟. In fact, the appellant itself has argued in that
line.
70. The concept of “tenant-at-sufferance” stems from English Jurisprudence
but has also been imbibed, although not in so many words, in Indian
Jurisprudence. In Indian Law, once a lease is terminated, the lessee
becomes liable to vacate the possession.
71. It is an admitted position in the present case that the State of West
Bengal entered into a lease in writing with the original owner on
February 23, 1984, agreeing thereby that the lease would commence
from April 1, 1980 and would expire after 16 years therefrom, that is, on
March 31, 1996.
72. Thus, on and from April 1, 1996, the State of West Bengal, which had
allotted the property to the appellant, became a tenant-at-sufferance.
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The status of a tenant-at-sufferance is of a shade somewhere between a
rank trespasser and a person in lawful occupation of a property. The
character of such possession is one of „unlawful occupier‟, although not
that of a „rank trespasser‟. Even if we proceed on such premise, Section
108(q) of the Transfer of Property Act, 1982 (for short, “the TP Act“)
provides that on the determination of the lease, the lessee is bound to
put the lessor into possession of the property. The said provision
embodies the concept of tenant-at-sufferance.
73. The only exception thereto is recognized in Section 116 of the TP Act,
which provides as follows:
“116. Effect of holding over.–If a lessee or under-lessee of property
remains in possession thereof after the determination of the lease granted to
the lessee, and the lessor or his legal representative accepts rent from the
lessee or under-lessee, or otherwise assents to his continuing in possession,
the lease is, in the absence of an agreement to the contrary, renewed from
year to year, or from month to month, according to the purpose for which the
property is leased, as specified in section 106.”
74. Thus, the sine qua non for a lessee, whose lease has expired, to have the
status of an entity “holding over”, is the assent of the lesser to such
continuance in possession. The expression “accepts rent” in Section 116
of the TP Act is inextricably intertwined with the following phrase: “or
otherwise assents to his continuing in possession”. The term “otherwise”
unerringly indicates that the acceptance of rent has to be associated
directly with the assent of the lessor for the lessee to continue in
possession after expiry of its lease. The effect of holding over is that, by
necessary inference, a jural relationship akin to a new tenancy is created
22
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by legal fiction. In the absence of any such assent, however, the status
of the lessee of an expired lease remains that of a tenant-at-sufferance
who has no interest or interest in the lease-hold property and is subject
to eviction by the lessor/owner.
75. In the present case, the appellant has argued that the claim of the
respondent no. 1 for rent compensation and electricity charges
tantamounted to recognition of the status of the appellant as a lessee by
holding over. However, a bare perusal of the letter issued by respondent
no. 1 in such context belies such proposition. In the letter dated
January 24, 2005 issued by the writ petitioner/respondent no. 1 to the
Joint Secretary of the Government of West Bengal, Urban Development
Department, Town and Country Planning Branch, the said respondent
claimed the due payments with regard to electricity charges during the
period of unlawful occupation by the State (through the appellant) in
respect of the subject-premises. However, a caveat was inserted
specifically in the communication, to the effect that such claim was
“without prejudice to the rights and contentions pending” in the matter.
Thus, the claim of electricity dues was merely by way of recovery of
money actually spent by respondent no. 1 for electricity consumption by
the appellant during its unlawful possession of the property, without
carrying any undertone of assent for the State/appellant to continue in
possession or to create a new lease at all. The “rent compensation”
claimed from the appellant was also in lieu of occupation charges,
without any specific admission anywhere expressing the intention of
232026:CHC-AS:382-DB
respondent no. 1/owner to grant a new lease or acceding to the
continuance of possession by the appellant. Rather, the respondent no.
1 has been litigating all along for regaining possession of the property.
The term “rent” in the expression “rent compensation” cannot be equated
with the contemplation of “rent” in terms of Section 105 of the TP Act,
since the rent compensation claimed by respondent no. 1 was merely in
lieu of occupation charges in the nature of compensation/mesne
profits/damages for the unlawful occupation of the property by the
State/appellant. Such amount cannot, by any stretch of imagination,
can be said to be the “periodical payment of money as a term or
consideration of a transfer of the right to enjoy the property” by
respondent no. 1 to the State or the appellant, as envisaged in Section
105.
76. Even otherwise, the stand of the appellant, that the claim of rent
compensation by respondent no. 1 recognized the status of the appellant
as a lessee, is mutually destructive of the plea of adverse possession.
77. In any event, at no point of time did the possession of the appellant in
respect of the subject-property either become „adverse‟ to that of the
respondent no. 1/true owner or partook of the character of „holding over‟.
Thus, the foundational edifice on which the appellant seeks to invoke
Section 27, read with Article 65, of the 1963 Act, is illusory and nothing
better than quicksand.
24
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78. In such view of the matter, since the possession of the appellant never
turned adverse to the respondent no. 1/true owner, it cannot be said
that Section 27 and/or Article 65 of the 1963 Act was ever attracted.
79. In Vidya Devi (supra)3, the Hon‟ble Supreme Court recognized the legal
principle that the State cannot perfect its title by claiming adverse
possession by grabbing the property of a citizen.
80. In the instant case, the illegality committed by the State is of a much
higher order, since, in order to favour its own Department/Directorate
(present appellant) the State retained its unlawful occupation of the
property, thereby flouting the specific direction to vacate the premises, as
embodied in the order dated December 24, 2001 passed in WP No. 805
(W) of 1996, despite such order having attained finality. The action of the
State, and in reflected light, of the appellant has been not only arbitrary
and unfair, but patently mala fide all through. First, the State sought to
perpetuate its possession even after the due date of expiry of its lease on
March 31, 1996 by issuing a requisition order on March 14, 1996 and
even going to the extent of granting notional possession to the appellant
on March 22, 1996. Then, when such ploy failed by the requisition being
set aside by this Court on December 24, 2001, the State blatantly
refused to comply with the solemn order by derequisitioning only a
portion of the entire property and unlawfully retaining 4449 Sq. Ft. in
the teeth of such order.
3
Vidya Devi v. State of Himachal Pradesh and others, reported at (2020) 2 SCC
569
25
2026:CHC-AS:382-DB
81. Not stopping there, the appellant has consistently attempted to ward off
all efforts of the legitimate owner/respondent no.1 to recover the
property and even to compensate the owner for the period of unlawful
occupation of the subject-property.
82. Such action is not only patently arbitrary but is imbued with legal
malice.
83. As further held by the Hon‟ble Supreme Court in Vidya Devi (supra)4,
there cannot be any delay in a continuing cause of action, since it was
the incumbent duty of the State and, by necessary implication, the
appellant, an instrumentality of the State, to comply with the direction of
the Writ Court dated December 24, 2001 and vacate the subject-
premises. Instead of doing so, the State went on so far as not to
derequisition 4449 Sq. Ft. of the total property. The legal malice of the
State was recognized by the Writ Court in WP No. 805 (W) of 1996 while
passing the order dated December 24, 2001 therein. Just before the
lease executed in favour of the State having expired on March 31, 1996,
the State, in a mala fide attempt to retain the property, issued a
requisition order dated March 14, 1996 and performed a charade, an
illusory handover of the property of the appellant, its own
instrumentality [aptly referred to as “paper possession” in the order
dated December 24, 2001 passed in WP No. 805 (W) of 1996].
84. Thus, it was not the obligation of the writ petitioner/respondent no. 1 to
run from pillar to post seeking possession and compensation but, rather,
4
Vidya Devi v. State of Himachal Pradesh and others, reported at (2020) 2 SCC
569
26
2026:CHC-AS:382-DB
the incumbent duty of the State, through the appellant, to hand over
vacant and peaceful possession of the property in favour of the true
owner pursuant to the order dated December 24, 2001. Having not done
so, the State and the appellant subjected themselves to continuous
liability to vacate the premises. Hence, the concept of “continuing cause
of action” is squarely attracted in the present case, as also recognized in
Dharnidhar Mishra (D) (supra)5.
85. Thus, this issue is decided against the appellant, holding that the claim
of the writ petitioner/respondent no. 1 is not barred by Section 27, read
with Article 65 of the 1963 Act.
(iv) Whether the writ court acted without jurisdiction, in view of
the limited powers of the Writ Court to decide questions of
title
86. The present writ petition, as rightly contended by respondent no. 1, is in
the nature of implementation of the order dated December 24, 2001
passed in WP 805 (W) of 1996, whereby the purported requisition of the
subject-property was set aside and the State was directed to vacate the
property immediately.
87. Upon dismissal for default of the two appeals preferred against such
order, bearing APO No. 43 of 2002 and APO No. 130 of 2002, the said
order of the Writ Court has attained finality. Thus, the claim of the State
and the appellant by virtue of such purported requisition was set at
5
Dharnidhar Mishra (D) and another v. State of Bihar and others, reported at
(2024) 10 SCC 605
27
2026:CHC-AS:382-DB
naught with the dismissal of the said appeals, respectively on July 1,
2003 and July 3, 2006.
88. Secondly, the writ petitioner/respondent no. 1 has not raised in intricate
question of title, requiring detailed evidence to be taken or any disputed
and complicated fact being adjudicated. The claim in the writ petition is
simpliciter – that the Land Acquisition Collector erred in law in holding
that the writ petitioner/respondent no. 1 is not the owner of the property
and withholding compensation and arrear electricity charges from the
said owner. In the process, the Writ Court also directed the appellant to
vacate the subject-property, since its occupation of the same is unlawful.
89. In the teeth of the order dated December 24, 2001, setting aside the
requisition proceeding and directing the State to vacate the property as
well as the expiry of the lease as long back as on March 31, 1996, the
appellant and/or the State have been relegated to the status of unlawful
occupants. In the absence of any ingredient of holding over being
established on the basis of the materials on record, no title could be or
has been claimed by the State or the appellant as such. Thus, the relief
sought before the Writ Court did not involve the adjudication of any
intricate question of title at all.
90. In view of the appellant being an instrumentality of the State and the
beneficiary of a requisition by the State which has been set at naught by
a competent Court, as well as the expiry of the lease obtained by the
State long back, the remedy under Article 226 of the Constitution of
28
2026:CHC-AS:382-DB
India was very much available to the writ petitioner/respondent no. 1,
being the true owner of the property.
91. Thirdly, the respondent no. 1 produced before the Writ Court
declarations issued by Poddar Udyog Limited and Poddar Projects
Limited, who were the other allottees, indicating that the Kolkata
Metropolitan Planning Organization had vacated their respective
allocated portions of the subject-property and they do not have any right,
title or interest over the remaining area of 9062 Sq. Ft. which solely
belongs to respondent no. 1 now. The said declarations, read in
conjunction with the order of the Company Court dated June 10, 1998
approving the Scheme of Arrangement, whereby s 9062 Sq. Ft. area
(containing the 4449 Sq. Ft. in occupation of the appellant) to the
respondent no. 1, leave no manner of doubt as to the entitlement of the
writ petitioner/respondent no.1 to obtain peaceful and vacant possession
of the subject-property and adequate compensation for the unlawful
occupation of the said property by the appellant.
92. Hence, the respondent no. 1 has proved beyond doubt its ownership in
respect of the subject-property as opposed to the State and the
appellant, who, even on the basis of the admitted facts, are unlawful
occupants in respect of the said property.
93. It is well-settled that State action has to be characterised by fairness and
has to be on a higher pedestal than that of private individuals, both in its
contractual obligations and in the public domain. Thus, in view of the
palpably illegal retention of occupation of the subject-property by the
29
2026:CHC-AS:382-DB
appellant in violation of Article 300A of the Constitution, the remedy
under Article 226 of the Constitution of India was very much available to
the writ petitioner/respondent no. 1.
94. R.V. Bhupal Prasad (supra)6 does not come to the aid of the appellant in
any manner, since the assent of the owner for the appellant to continue
in possession has not been established in the present case, as opposed
to the factual premise of the said decision.
95. In Anamallai Club (supra)7, the Hon‟ble Supreme Court merely reiterated
the settled proposition of law that a person cannot be dispossessed
without due process of law. In the present case, writ petition itself was
filed in due process of law to obtain the eviction of the appellant, without
respondent no. 1 having resorted to any tactics of force. That apart, the
present writ petition is also by way of implementation of the already-
existent order dated December 24, 2001 of the writ court for the State to
vacate possession of the property.
96. In Parvatibai Subhanrao Nalawade (Smt) (supra)8, the Hon‟ble Supreme
Court was considering a consent decree of the Civil Court which was
directed to be put into execution. In such context, it was held that no
writ petition would be maintainable, since the appropriate remedy would
be to execute the Civil Court‟s decree. The facts of the present case are
completely different and, thus, the above proposition is not applicable
here at all.
6
R.V. Bhupal Prasad v. State of A.P. and others, reported at (1995) 5 SCC 698
7
Anamallai Club v. Govt. of T.N. and others, reported at (1997) 3 SCC 169
8
Parvatibai Subhanrao Nalawade (Smt) v. Anwarali Hasanali Makani and others,
reported at (1992) 1 SCC 414
30
2026:CHC-AS:382-DB
97. Accordingly, the writ petition filed by the respondent no. 1 is held to have
been maintainable in all respects.
(v) Whether the appointment of Arbitrator by the impugned order
was illegal
98. The Hon‟ble Supreme Court, in several judgments, has sanctioned the
appointment of an Arbitrator unilaterally by the court for the purpose of
assessment of compensation and/or for ancillary purposes. The echo of
such proposition is found in Punalur Paper Mills Ltd. (supra)9, Union of
India v. Shakuntala Gupta (dead) (supra)10 and Union of India and others
v. Krishan Lal Arneja and others (supra)11.
99. Moreover, we find that the term “Arbitrator” was used as a mere
nomenclature by the Writ Court only insofar as the computation of the
compensation is concerned. The learned Single Judge, in fact, granted
the writ petitioner/respondent no. 1 liberty to submit a comprehensive
application to the respondent no. 2, the Principal Secretary to the
Government of West Bengal, Department of Land and Lard Reforms,
seeking compensation for the period of illegal occupation by the present
appellant, upon the submission of which the respondent no. 2 was to
appoint an Arbitrator within the period specified in the order and refer
the claim of the writ petitioner to the Arbitrator. Hence, the appointment
9
Punalur Paper Mills Ltd. v. W.B. Mineral Development & Trading Corpn. Ltd.
and others, reported at (2021) 14 SCC 528
10
Union of India v. Shakuntala Gupta (dead) by LRs., reported at (2002) 7 SCC 98
11
Union of India and others v. Krishan Lal Arneja and others, reported at (2004)
8 SCC 453
31
2026:CHC-AS:382-DB
of Arbitrator was not “unilateral” insofar as the appellant is concerned;
rather, the writ petitioner/respondent no. 1 might have had an objection
thereto, since the respondent no. 2, being an officer of the State, has
been empowered to appoint the Arbitrator. Thus, there is no impartiality
or unfairness in such appointment as it is the State itself, through its
functionary, which will appoint the Arbitrator for the purpose of
calculation of compensation. Rather, this Court appreciates the course
of action taken by the learned Single Judge in not usurping the power of
the State, in the first place, to assess such compensation. The learned
Single Judge, in perfect consonance with law, has merely permitted the
writ petitioner/respondent no. 1 to apply for compensation before
respondent no. 2 who, in turn, will appoint an Arbitrator to pronounce a
formal award towards such compensation for the period during which
the subject-property was in illegal occupation of the appellant.
100. Hence, we do not find any illegality in such course of action of
appointment of an Arbitrator at all.
101. This issue, thus, is also decided against the appellant.
CONCLUSION
102. In view of the above findings, this Court does not find any illegality or
jurisdictional error and/or perversity in the impugned order of the
learned Single Judge to merit interference within the limited scope of an
32
2026:CHC-AS:382-DB
intra-court appeal. Not only a plausible view but the correct view, in our
humble opinion, was taken by the learned Single Judge in passing the
impugned order.
103. At the same time, we take note of the immense harassment suffered by
the writ petitioner/respondent no. 1 in being compelled to run from pillar
to post for vindication of its legitimate and legal rights, due to the
conduct of the appellant and its continuous resistance designed to
thwart due process of law. Accordingly, the appellant is required to be
saddled with costs. Yet, such costs should not be borne by the public
coffer but liability therefor should be fixed at an individual level. Thus,
we deem it appropriate to impose appropriate costs personally on the
Director of the appellant-Directorate, who is in overall charge of affairs
and through whom the appeal has been filed, thus making him/her
liable to pay such costs.
104. Accordingly, the appeal fails.
105. M.A.T. No. 1134 of 2025 is dismissed on contest, thereby affirming the
impugned judgment and order dated May 21, 2025 passed by the
learned Single Judge in WPA No. 10640 of 2012, with costs assessed at
Rs. 50,000/- to be paid by the Director, Transportation, Planning and
Traffic Engineering Directorate, Government of West Bengal, Transport
Department to respondent no.1 within a fortnight from date, that is, on
or before March 23, 2026.
106. CAN 2 of 2025 and CAN 3 of 2025 are disposed of accordingly.
33
2026:CHC-AS:382-DB
107. Urgent certified copies, if applied for, be supplied to the parties upon
compliance of all formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)