Calcutta High Court
Sanjoy Das Gupta & Ors vs Jharna Maulik & Ors on 13 September, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
APOT 196 of 2017
GA No.3083 of 2017
GA No.3084 of 2017
GA No.3085 of 2017
With
WP No.254 of 2017
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SANJOY DAS GUPTA & ORS.
Versus
JHARNA MAULIK & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
The Hon'ble JUSTICE ASHA ARORA
Date : 13th September, 2017.
Appearance
Mr. Hiranmay Bhattacharyya, Advocate led by Mr.Saptangsu Basu, Sr.
Adv., Mr. Lalratan Mondal, Advocate for appellants.
Mr. Ashok Kr. Banerjee, Sr. Adv., Mr. Alok Kr. Ghosh, Mr. S. K.
Debnath, Advocates for K. M. C.
Mr. Soumya Majumdar, Mr. Tridib Chakraborty, Advocates for
respondent nos.1 to 6.
Mr. Kishore Dutta, Advocate General, Mr. Amitesh Banerjee, Sr. Standing Counsel for the State.
The Court : One Sanjay Das Gupta with Ranjit Mondal and Kallol Majumdar have approached this Court of Appeal seeking leave to prefer an appeal in respect of the following order :-
"The Corporation cannot usurp the right, title and interest as the said property was found abundant and used by the local peoples. The petitioners claiming themselves to be the owners of the subject property by way of inheritance. A partition suit was filed amongst the co-sharers and the final decree has been passed therein.
According to the petitioners, the taxes and revenue in respect of the said plot of land are paid by the co-owner which evidently proves the right, title and interest 2 in respect thereof. It is alleged in the writ petition that sometimes in 2014, the said land was found to have been surrounded by grill and a gate was erected at the entrance of the said plot displaying the name of the Corporation and describing the said plot of land as a 'Sishu Udyan' or Children's Park.
The writ petition was adjourned from time to time enabling the learned Advocate for the Corporation to appraise the Court whether the aforesaid plot of land belongs to the Corporation.
It is candidly submitted by Mr. Ghosh that though the officers came, but there is no document forthcoming or produced before him how the Corporation acquired the title over the said plot of land.
On an earlier occasion the Block Land & Land Reforms Officer was directed to cooperate with the Corporation authorities as the area where the plot in question is situated, was subsequently included in the Kolkata Municipal Corporation.
It is submitted on behalf of the said authorities that the Corporation authorities never approached him and all the records pertaining to the said area have already been transmitted to the Corporation.
Be that as it may, it is really unfortunate that the Corporation merely proceeded to take control of a plot of land as the local peoples were using the same as a park without venturing to find out whether the said plot of land belongs to them or to any individuals. If the Corporation feels that the said plot of land is fit to be used as a Children's Park, there is no fetter under the relevant laws to initiate an acquisition proceeding. Without acquiring the land strictly in terms of the law, the Corporation cannot assume or presume the vacant plot of land to be their property as the local peoples were found to have used it as Children's Park. The genesis of the Corporation is the Kolkata Municipal Corporation Act, 1980 and all actions must be strictly within the periphery of the said Act. Neither the authorities under the Corporation can travel beyond the periphery of the said Act nor take the law in their 3 hands in taking control of the individual property in the garb of being utilised by the local peoples as Children's Park.
This Court, therefore, finds that it is a fit case where a mandamus should be issued upon the Corporation. The Municipal Commissioner is directed to immediately remove all the fencing as well as the display board affixed by surrounding the plot of land and shall restore the same to its original position as it stood. After removal and/or demolition of those structures, the Corporation shall intimate the petitioners that the direction passed hereinabove has been carried out. It further appears that the application for change of the name is pending before the Block Land & Land Reforms Officer. The said officer is directed to dispose of the said application within four weeks from the date of the communication of this order and communicate the decision to the applicants therein within a week therefrom.
With these directions the writ petition is disposed of.
There will be no order as to costs."
The aforesaid order was passed by a learned Single Judge in W. P. 254 of 2017 on 16th May, 2017 at the instance of Jharna Maulik and others, being the writ petitioners. The paragraphs which the applicants seek to rely on for the purpose of seeking leave to appeal against the order dated 16th May, 2017 are as follows :
"2. Your petitioners state that on 06.09.2017 in the evening, your petitioners found the some persons claiming to be the men and agents of the local police station and the Municipal authorities asking the persons present in the Sarat Smriti Sishu Uddyan that action will be taken against the persons who will be found to play and/or utilized the same as a park. Upon enquiry, your petitioners came to know that an order has been passed by the Hon'ble High Court at Calcutta in respect of the said Children's park.4
3. Your petitioners state that your petitioners after coming to know of the said fact, your petitioners submitted a representation before the Officer-in-Charge, Regent Park Police Station on 07.09.2017.
4. Your petitioners state that Sarat Smriti Sishu Uddyan is the only children's park/play ground in the said locality. It has come to the notice of your petitioners that attempts are being made to grab the said park.
5. Your petitioners state that the children of the locality are playing in the said park. Various cultural programs, sports event, blood donation camp and other social activities are conducted in the said park. The Senior Citizens and other inhabitant of the said locality are using the park for daily morning work. Your petitioners as well as other persons are interested in protecting the said park.
6. Your petitioners state that after submitting the representation before the police authority and upon enquiry, your petitioners were informed by the police authorities that a writ petition being W.P. No. 254 of 2017 has been filed before this Hon'ble Court and an order has been passed by this Hon'ble Court to restore the plot of land which is being used as Children's park/play ground to its original position as it stood.
7. Your petitioners state that after coming to know of the number of the writ petition which was filed before the Hon'ble Court, your petitioners after conducting necessary searches obtained the copy of the order dated 16th May, 2017 passed in W.P. No. 254 of 2017 from the official website of this Hon'ble Court.
8. Your petitioners state that the writ petitioners obtained the order dated 16th May, 2017 without impleading your petitioners as party respondents in the instant writ petition. The writ petitioners are well aware of the fact that the inhabitants of the locality including your petitioners are using the said plot as a children's park/play ground. Your petitioners further state that no copy of the writ petition has been 5 served upon your petitioners and the writ petitioners have obtained the orders in connection with the instant writ petition behind the back of your petitioners.
9. Your petitioners state that the authorities of the Kolkata Municipal Corporation and the police authorities are threatening of your petitioners of dire consequences in the event your petitioners take steps for protecting the Children's park/play ground.
10. Your petitioners state that the men and agents of the police authorities and the municipal authorities have stated that they shall take steps for restoration of the plot of land which is being used as children's park/play ground at present to its original position on or before 12th September, 2017.
11. Your petitioners state that your petitioners are jointly interested in the protection of the Children's Park/Play Ground."
In a proceeding initiated under Article 226 of the Constitution of India by the writ petitioners seeking the Court's intervention and protection in a fact situation where the Kolkata Municipal Corporation had proceeded to take control of a plot of land, which was being used by local people as a park without venturing to find out whether the said plot of land actually belongs to them or any individual, the Court found it a fit case where a mandamus should be issued upon the Corporation. During the course of hearing before the learned Single Judge, the Corporation could not produce a single document to demonstrate how it acquired the title over the plot of land. This is a significant aspect of the matter since the concerned Block Land & Land Reforms Officer was represented and it was submitted on behalf of the said authority that the Corporation Authority never approached him and all records pertaining to the area had already been transmitted to the Corporation. In an Intra-Court Mandamus Appeal interference is usually warranted when palpable infirmities or perversities are noticed. No such palpable infirmity or perversity is noticed from a plain reading of the impugned judgement and order. The impugned judgement and order is supported with cogent reasons. While the applicants' bona fides are quite suspect, their locus standi even more 6 doubtful. They are three in number and they have stated in paragraph 11, as quoted above, that they are jointly interested in protection of the children's park/play ground, while the records clearly demonstrate that the Corporation has no right, title or interest whatsoever over the plot in question. Significantly, the Corporation has not come forward to make any claim in this regard.
For reasons stated above, the application for leave to prefer the appeal, being G. A. 3083 of 2017, is liable to be dismissed with exemplary costs. However, on the prayer made by the learned senior advocate representing the applicants, the application for leave to prefer the appeal stands dismissed without any order as to costs.
Consequently, APOT 196 of 2017 along with G. A. 3084 of 2017 and G. A. 3085 stand dismissed.
(BISWANATH SOMADDER, J.) (ASHA ARORA, J.) pa