Rajendra Menon, J.@mdashThis application has been filed for clarification of an order passed by this Court on 29.2.2012, in Writ Petition No. 8435/2010. Office has raised an objection that a review application should have been filed and this application is not maintainable.
2. As only clarification of certain directions issued is sought for, the office objection is over-ruled.
3. Non-applicant No. 1 is owner of Godown and Collector, Sehore passed an order by which Godown of non-applicant No. 1 was taken on requisition under the MP Accommodation (Requisition) Act, 1948 (hereinafter referred to as the ''Act of 1948''). Non-applicant No. 1 challenged the requisition by filing a writ petition, W.P. No. 8435/2010, and it was their case before this Court that as the requisition is undertaken without following the statutory requirement of Rules 3 and 4, of the Act of 1948, the same is illegal. Considering the aforesaid grievance of the non-applicant No. 1/petitioner and taking note of an order passed under similar circumstances by this Court on 30.3.2010, in Writ Petition No. 3719/2010 [Shreenath Warehouse Vs. State of MP and others], this Court came to the conclusion that the requisition undertaken is not sustainable and, therefore, allowed the petition, quashed the order of the Collector and directed that for the period the Godown continued under requisition, the question of payment of rent be determined in accordance to the mandate of Section 4 of the Act of 1948.
4. Section 4, of the Act of 1948, contemplates a procedure for determining the amount for requisitioning an accommodation. According to the provisions of Section 4(1)(a), initially the amount has to be settled on the basis of an agreement entered into between the requisitioning authority and the owner i.e.... the Collector and non-applicant No. 1, and if the agreement is not entered into and if the procedure contemplated u/s 4(1)(a) fails, then the matter has to be referred for arbitration to the District Judge or the Additional District Judge or a Civil Judge, in accordance to section 4(1)(b), of the Act of 1948.
5. It is pointed out by Shri P.N. Dubey, learned counsel for the applicants, that in the present case the Collector has passed an order on 27.8.2012 - Annexure A/5, whereby the procedure for determination of the rent/requisition amount has failed and, therefore, he seeks a clarification that now the matter should be referred by the Collector, who is delegated the power by the State Government, for making reference u/s 4(1)(b), of the Act of 1948. Accordingly, seeking a clarification to the order by directing the Collector to make a reference for arbitration, as contemplated u/s 4(1)(b), this application has been filed.
6. Shri Atul Anand Awasthy, learned counsel for non-applicant No. 1, submitted that as directed by this Court in the original writ petition, the procedure u/s 4(1)(a) has not been followed. The order-dated 27.8.2012 - Annexure A/5 is an order passed by the Collector without following the procedure of negotiation or agreement. He has adjudicated the dispute based on the circulars issued by the Warehousing Corporation for fixation of amount. Learned counsel accordingly submits that first the Collector should follow the procedure u/s 4(1)(a) then only the second part contemplated u/s 4(1)(b) can be resorted to.
7. Shri Manoj Sharma, learned counsel appearing for the Bank/intervener, pointed out that against the Godown in question and the property involved, proceedings u/s 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ''Act of 2002'') is pending and, therefore, even if any amount is determined for the accommodation, the same has to be paid to the Bank and not to the owner.
8. I have heard learned counsel for the parties and perused the records.
9. When this Court in the original writ petition, on 29.2.2012, directed for determining the rent or the amount of requisition u/s 4, it was the intention of this Court that the Collector concerned shall first follow the procedure contemplated u/s 4(1)(a) and if no agreement is arrived at then the procedure contemplated u/s 4(1)(b) has to be followed. The order passed by the Collector as contained in Annexure A/5 dated 27.8.2012, indicates that he has simply determined the amount based on the fixation done by the MP Warehousing Corporation. No procedure has been undertaken by him, by which an offer is made to the owner; he is either requested to accept or give his counter-offer and thereafter a decision is taken on the basis of agreement. On the contrary, based on the circulars and policy issued by the Warehousing Corporation, a quasi judicial order is passed determining the amount of rent of the accommodation, which in not in accordance with law and does not meet the requirement of section 4(1)(a).
10. In view of the above, the order passed by this Court on 29.2.2012, in Writ Petition No. 8435/2010, is clarified and by way of clarification, the following directions are issued:
1. The Collector concerned shall first by following the procedure contemplated u/s 4(1)(a) of the Act of 1948, hold negotiation with the owner of the property and try to arrive at an amount of rent to be paid, for the requisitioned property.
2. If no decision in this procedure is arrived at or no agreement is entered into, the Collector shall refer the matter u/s 4(1)(b), of the Act of 1948.
3. On a reference being made, the learned Arbitrator shall ensure that the matter is decided within a period of two months. After determination of the matter and recovery of the amount, the Collector shall ensure that if any liability is imposed upon the owner due to proceedings initiated by the Bank u/s 13 of the Act of 2002, the amount shall be dealt with in accordance with law and the right of the Bank to receive the amount shall be protected
11. With the aforesaid directions, this application stands disposed of. Certified copy as per rules.
