State can’t take over property as ownerless to evict lessee, says Calcutta High Court

Kolkata: The Calcutta High Court has set aside a 2019 order that sought to take over a central Kolkata premises as an ownerless property, holding that the state cannot treat a property as ‘bona vacantia’ (property with no apparent owner) when a lawful lessee is in possession and when objections have not been examined through a proper inquiry.

The writ petitioner, Lagan Engineering Company Ltd., a joint-venture company in which the Government of India holds 18 per cent equity, has been occupying the premises at 14, Ishaque Road (erstwhile Kyd Street) as lessee since a lease deed executed on July 7, 1964.

The lease was last extended on September 24, 2009 for nine years with a further extension option at the petitioner’s instance. The company told the court that it has remained in continuous occupation for 54 years and odd, and that disputes among multiple claimants over ownership and rent have prevented regular payment.

On November 19, 2018, the First Land Acquisition Collector issued a notice under Section 4(3) of the West Bengal Escheats and Forfeitures Act, 2012, stating a belief that the property had no legal owner after the original lessor’s death. The petitioner’s authorised representative attended hearings on December 10 and 19, 2018 and filed a written objection on December 19, 2018. Despite this, a further notice dated July 23, 2019 was issued by the Collector, Stamp Revenue, Kolkata under Section 5 of the Act proposing to take over possession.

Justice Rai Chattopadhyay found that there was no material establishing that the property was actually ownerless. The court noted that several persons had been claiming ownership and rent, and that the extent of their rights was yet to be determined in accordance with the law. The court held that such a property could not be treated as bona vacantia merely because title disputes remained unresolved.

The court also found that the July 23, 2019 notice was not a speaking order and did not record how the petitioner’s objections were considered, although the inquiry provisions required a meaningful hearing and a reasoned finding.

Quashing the notice as arbitrary and illegal, the High Court directed the petitioner to file a comprehensive written representation with all documents. The collector, stamp revenue must consider it afresh along with the earlier objection, grant adequate hearing, and issue a reasoned order within four weeks of receiving the representation.