Calcutta High Court (Appellete Side)
Kolkata Municipal Corporation & Ors vs Guddi Devi Sharma & Ors on 14 June, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
And
The Hon'ble Mr. Justice Sankar Acharyya
CAN 514 of 2017
in
MAT 64 of 2017
Kolkata Municipal Corporation & Ors.
Vs.
Guddi Devi Sharma & Ors.
For the appellants/applicants: Mr. Alak Kumar Ghosh
Mr. Ranajit Chatterjee
Mr. Gopal Chandra Das
For the respondent nos.1, 2 &
3/writ petitioners: Mr. Abhrajit Mitra, Sr. Adv.
Mr. Chayan Gupta
Mr. D.R. Basu
For the respondent nos.4-27: Ms. Lapita Banerji
Heard on: 14th June, 2017.
Judgment on: 14th June, 2017.
Biswanath Somadder, J.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The appeal arises out of the following order passed by the learned Single Judge on 22nd December, 2016, while admitting WP 15893 (W) of 2016 (Guddi Devi Sharma & Ors. vs. Kolkata Municipal Corporation & Ors.):-
"This writ application is formally admitted subject to the question of constructive res judica [sic; read, res judicata] raised by Mr. Chatterjee.
If after determination of the maintainability point, the Court is asked to determine whether the subject property is "bustee or not", some corroboration of the finding of the respondent-Corporation that the said property is bustee may be required for the assistance of the Court.
At the present point of time, I appoint Mr. Kalyan Chakraborty, Advocate, Bar Association and Mr. Sanjeeb Seni, Advocate, Bar Association Room No.16 as Joint Special Officers at an initial remuneration of 600 GMs each to be paid by the petitioners to visit the site upon notice to and in the presence of the parties including a responsible officer of the Corporation and file a short report with necessary reasons and details in this Court by 17th January, 2017 as to whether the subject property is a bustee or not within the meaning of Section 2(8) and 2(45) of the Kolkata Municipal Corporation Act, 1980.
List this application on 17th January, 2017."
The appellants before us are Kolkata Municipal Corporation and its authorities.
According to the learned advocate representing Kolkata Municipal Corporation, the learned Single Judge ought to have decided the preliminary point of maintainability of the writ petition on the question of constructive res judicata before issuing a direction appointing learned advocates as joint special officers to carry out a fact-finding enquiry as to whether the subject property was a bustee or not within the statutory definition as contained under the Kolkata Municipal Corporation Act, 1980.
In this context, the learned advocate for the Kolkata Municipal Corporation at first refers to and relies upon an order dated 29th March, 2016, issued by the Assessor-Collector (North), Kolkata Municipal Corporation, wherein the following finding was arrived at by the concerned Assessor- Collector on the basis of spot enquiry made by the concerned Inspector of Kolkata Municipal Corporation:-
"... Condition of structure and nature of inhabitants would reveal the fact that the premises is a "Bustee" in nature as reported."
It is the specific submission made on behalf of the learned advocate representing Kolkata Municipal Corporation that this order of the Assessor- Collector (North) was a subject-matter of challenge in an earlier writ petition filed by the same respondents herein. The said writ petition, being WP 363 of 2016, was considered by the same learned Single Judge on 4th May, 2016, wherefrom it would clearly appear that the order dated 29th March, 2016, passed by the Assessor-Collector (North) of Kolkata Municipal Corporation was impugned. The impugned order was neither set aside nor stayed nor varied nor modified by the writ Court. In other words, the impugned order dated 29th March, 2016, passed by the Assessor-Collector (North) of Kolkata Municipal Corporation was not interfered with by the writ Court in the earlier writ petition. He submits that in such circumstances, the writ Court while passing the impugned order dated 22nd December, 2016, ought to have decided on the preliminary question of maintainability of the writ petition on the point of constructive res judicata before appointing joint special officers for the purpose of conducting a fact-finding enquiry as to whether the subject property was a bustee or not.
On the other hand, the learned advocate representing the respondent nos.1, 2 and 3 refers to section 2(45) of the Kolkata Municipal Corporation Act, 1980 in order to submit that the statutory definition of the word "bustee" as provided under section 2(8) of the Kolkata Municipal Corporation Act includes in its fold "hut" which is defined under section 2(45). As such, it is required to be ascertained by a fact-finding enquiry by the joint special officers as to whether the bustee includes huts or not. According to him, it is only possible through a fact-finding enquiry by the joint special officers as directed by the learned Single Judge.
Learned advocate representing the respondent nos.4 to 27 submits that these are essentially disputed questions of facts which the writ Court ought not to have gone into at all.
After considering the respective submissions made by the parties, certain undisputed facts emerge:
The Assessor-Collector (North) of Kolkata Municipal Corporation passed an order on 29th March, 2016. In the said order, the Assessor-Collector has referred to a spot enquiry conducted by the concerned Assessing Inspector of Kolkata Municipal Corporation who has come to a finding, inter alia, that the condition of structure and nature of inhabitants would reveal the fact that the premises is a "bustee" in nature as reported. This order of the Assessor- Collector (North) was the subject-matter of challenge in WP 363 of 2016. Even a plain reading of the order dated 4th May, 2016, reveals that this particular issue as to whether the subject premises was a "bustee" in nature or not, as observed by the Assessor-Collector (North) of Kolkata Municipal Corporation in his order dated 29th March, 2016, has not been interfered with. The description of the concerned "bustee", in the order of the Assessing-Collector (North) dated 29th March, 2016, does not include any "hut" as statutorily defined under section 2(45) of the Kolkata Municipal Corporation Act, 1980.
In such circumstances as stated above, it was perhaps not proper for the learned Single Judge to appoint joint special officers for the purpose of conducting a fact-finding enquiry as to whether the subject property was a "bustee" or not within the statutory definition as provided under the Kolkata Municipal Corporation Act, 1980.
The impugned order dated 22nd December, 2016, is, therefore, liable to be set aside and is accordingly set aside. The matter is remanded before the learned Single Judge for consideration of the preliminary point as sought to be raised by Kolkata Municipal Corporation, before passing further orders in the writ petition.
We, however, make it clear that none of the observations made in this judgment and order should cause any prejudice to the parties at the time of hearing of the preliminary point of maintainability as raised by Kolkata Municipal Corporation.
The applicants who have been added as parties in the instant proceeding in terms of the order dated 22nd February, 2017, passed in CAN 1543 of 2017, shall be formally added as parties to the writ proceedings pending before the learned Single Judge, if not already added.
The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) pg .