Om Prakash Bhartia & Anr vs The Metro Railways & Ors on 3 December, 2010

[Cites 4, Cited by 2]

Calcutta High Court

Om Prakash Bhartia & Anr vs The Metro Railways & Ors on 3 December, 2010

The Court : This petition is at the instance of Sri Om Prakash Bhartia and his wife Smt. Manju Bhartia. They are aggrieved by two separate notices, both dated 14th September, 2007, issued by the Executive Engineer/Ph.I on behalf of the Chief Engineer, Metro Railway, Kolkata. By such notices, the petitioners have been separately informed as follows :

"Now that under such circumstances the actions contemplated under the Metro Railway's (Construction of works Act, 1978) has become impossible and the obligation of Metro Railways under the said act seizes to be operative any more, the notice dated 17.4.1992 as aforesaid is hereby revoked with immediate effect."

The petitioners claim that they were the tenants in respect of three rooms in the building that once upon a time stood on premises 2 no.170B, Chittaranjan Avenue, Kolkata. Originally, the predecessor-in- interest of Sri Om Prakash Bhartia was the tenant and on his death in the year 1962, the petitioners have stepped into the shoes of the erstwhile tenant.

For the purpose of facilitating construction of metro railway in the city of Kolkata, the Executive Engineer/North-1 of the Metro Railway had issued a notice in favour of Smt. Manju Bhartia dated 17th April, 1992. The notice is reproduced hereunder:

"As it is considered that premises no.170B, C. R. Avenue has become unsafe, you being resident are hereby directed under Provision 21 (B) of Metro Railway Construction of Works Act, 1978 to vacate the premises immediately (within 3 days) and make your own arrangement to shift to an alternate temporary accommodation suitable for you within a monthly rent of Rupees Twelve hundred only. The payment of rent will be reimbursed by Metro Railway till you are directed to come back to your original place after the repairs of premises."

The petitioners, upon receipt of the aforesaid notice, claim to have vacated the tenanted premises and had shifted to an alternative accommodation. The Metro Railway in terms of promise held out in the aforesaid notice continued to pay Rs. 1200 per month to Smt. Manju Bhartia till such time the impugned notices referred to above were issued.

It is not in dispute that proceedings were initiated before this Court in its writ jurisdiction and the same travelled to the Appeal Court, 3 in connection with the issue of vacating of the building standing on premises no. 170B, Chittaranjan Avenue by its occupiers.

Several orders were passed by the Division Bench of this Court. It appears that the Division Bench was apprised of the fact that the building standing on premises no. 170B, Chittaranjan Avenue had become so unsafe that unless it was razed, it would prove to be fatal to the local people in that there was every possibility of the same collapsing resulting in casualties. In terms of liberty granted by the Division Bench, the officers of the Kolkata Municipal Corporation conducted inspection and the entire building standing on premises no. 170B Chittaranjan Avenue was gradually razed.

It is further not in dispute that after the entire building was razed, a new construction is coming up at the site. The petitioners were not allotted any space in the new structure that is under construction at the instance of the landlords. Feeling aggrieved, they have instituted title suit No. 1743 of 2010 in the City Civil Court at Kolkata praying for, inter alia, the following relief :

a) A decree of Declaration declaring that the plaintiffs are tenants in respect of three rooms at the suit premises being premises Nos. 170A and 170B, Chittaranjan Avenue, P.S. Jorashanko, Kolkata- 700 007;

b) A decree declaring that the defendant has no right and/or authority to interfere with the possession of the plaintiffs in respect of the three rooms in the building constructed at 170A and 170B, Chittaranjan Avenue, P.S. Jorashanko, Kolkata- 700 007;

c) A decree of Permanent Injunction restraining the defendant, their men, agents and assigns from parting with possession of the three rooms of the building constructed at 170A and 170B, Chittaranjan Avenue, P.S. Jorashanko, Kolkata- 700 007 and directing the defenant to keep three rooms vacant;

d) Alternatively a decree of permanent mandatory injunction directing the defendant and its men, agents and servants to induct the plaintiffs in peaceful possession of the three vacant rooms at the building constructed at 170A and 170B, Chittaranjan Avenue, P.S. Jorashanko, Kolkata- 700 007;

                 e)     Receiver;
                 f)     Injunction;
                 g)     Costs;
                 h)     Such further or other reliefs.

It has also not been disputed that the petitioners prayer for ad-

interim injunction has been refused by the Trial Court and the appeal preferred thereagainst was not admitted under Order 41 Rule 11 of the Code of Civil Procedure. The Division Bench, for ends of justice, by its order dated 23rd August, 2010 granted liberty to the petitioners to file supplementary affidavit before the Court below disclosing facts which were mentioned in the application for injunction and to apply for ad- interim relief afresh.

It is at this stage that the present petition has come up before this Court for final hearing.

From the prayer clauses of the present petition, it appears that two-fold relief have been claimed i) implementation of the order passed 5 by the Division Bench in Appeal No. 498 of 1992; and ii) quashing of notices dated 14th September, 2009.

Mr. Bhattacharjee, learned Advocate for the petitioners was called upon by the Court time and again to place that part of the order of the Division Bench which protected the interest of the petitioners, viz. that they would be entitled to payment of Rs. 1200 from the Metro Railway till such time their possession is restored. No such direction was passed by the Division Bench and obviously Mr. Bhattacharjee could not succeed in his pursuit of convincing the Court that there was indeed such a direction, which the petitioners intended the Metro Railway to implement. There is thus no reason to grant prayers (a) and

(b) of the petition.

While seeking to assail the notices dated 14th September, 2009, Mr. Bhattacharjee contended that the decision contained in the impugned notices have been arrived at by the Metro Railway without granting any opportunity of hearing. It was further submitted that power has been exercised by the Metro Railway in a manner inconsistent with Section 21 of the said Act of 1978.

The contention that the notices were issued without hearing the petitioners and, therefore, it amounts to violation of principles of natural justice and thus this Court ought to remit the issue back to the Metro 6 Railway has failed to impress. In Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P. & Ors., the Supreme Court had the occasion to observe as follows:

"Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits."

It is therefore clear that until and unless there is a possibility of the outcome of a decision being otherwise pursuant to grant of hearing to a party who claims to be affected by breach of principles of natural justice, a Court would not mechanically remit the matter back to the authority only on the ground that natural justice has been violated. This Court after hearing Mr. Bhattacharjee is of the considered view that in issuing the impugned notices, even without hearing the petitioners, the Metro Railway has not committed any illegality warranting interference.

Section 21(1) of the said Act of 1978 provides as under :

"21. Power to prohibit or regulate construction of buildings and excavation. (1) If the Central Government is of opinion that it is necessary or expedient so to do for facilitating the construction of any metro railway or for ensuring the safety of any metro railway, it may, by notification in the Official Gazette, -

a) direct that no building or any such development as may be specified in the notification shall be constructed or made above the metro alignment or on any land within such distance, not exceeding twenty metres on either side of the metro alignment, as may be specified in the notification and where there is any building on such land also direct the owner of, or the person having control over, such building to demolish such building as may be specified in the notification or to desist from making any such development and within such period as may be specified in the notification;

b) direct temporary evacuation of all pesons together with any movable property or animal that may be in the custody, control or possession of such persons from any building situated above the metro alignment or in any areas within a distance not exceeding twenty metres on either side of such alignment and within such period as may be specified in the notification :

Provided that before issuing any notification under this clause, the Central Government shall provide every such person temporarily with alternative accommodation, which in its opinion is suitable, free of cost or an amount, which in its opinion is sufficient, to procure a temporary alternative accommodation."

A bare reading of the aforesaid statutory provision would reveal that the obligation of the Metro Railway to provide temporary alternative accommodation or amount that is sufficient to procure a temporary alternative accommodation is co-terminus with the need of facilitating construction of any metro railway or for ensuring the safety of any metro railway. The metro railway has been operating services in Kolkata between Esplanade and Dumdum since 1995. There is no imminent threat to stability of buildings on either side of Chittaranjan Avenue or to the local public who might use such avenue. Therefore the need for which the notification contemplated in Section 21(1) of the Act was issued, presently, has ceased to remain operative. The Metro Railway is under no obligation to provide the petitioners Rs. 1200/- in terms of notice dated 17th April, 1992, referred to above.

The contention of Mr. Bhattacharjee that till such time possession of the petitioners is restored in the building that is under 8 construction on premises No. 170B, Chittaranjan Avenue payment ought to continue is thoroughly misconceived. Once the building is razed and the need referred to in Section 21(1) of the said Act of 1978 ceased, the Metro Railway ought not to have continued with the payment of Rs. 1200/-. The petitioners have obtained benefits, which in law, they were not entitled to claim. This Court, however, does not propose to take back any benefit from the petitioners which might have wrongfully been extended to them by the Metro Railway. For the discussion as aforesaid, there is no question of directing the Metro Railway to continue to pay Rs. 1200/- to the petitioners.

The writ petition is absolutely misconceived and, accordingly, stands dismissed without order for costs.

Needless to mention, no observation contained herein would influence a decision on the suit instituted by the petitioners and the same shall be decided on merits and in accordance with law.

Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(DIPANKAR DATTA, J.) TR/

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Calcutta High Court