Calcutta High Court (Appellete Side)
Sushila Devi Bajaj vs Howrah Municipal Corporation on 12 February, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
12.02.18
03 Ct. No.29
Sws.M
W.P. 2624(W) of 2017
+
CAN 1296 of 2018
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CAN 1332 of 2018
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CAN 1329 of 2018
[Sushila Devi Bajaj Vs. Howrah Municipal Corporation
& Ors.]
Mr. Anindya Mitra
Mr. Surojit Nath Mitra
Mr. Raja Basu Choudhury
Mr. Sandip Dey
Mr. Chayan Gupta
Mr. Soymyajyoti Nandy
....for the Petitioner
Mr. Kishore Datta
Mr. Sandipan Banerjee
Mr. N.C. Behani
...for the Applicant
in CAN 1296 of 2018
Mr. Bikash Ranjan Bhattacharya
Mr. Subhasis Chakraborty
Ms. Sutapa Sanyal
Mr. Amit Chowdhury
Ms. Susmita Biswas
....for the applicant
in CAN 1329 of 2018
Ms. Anjusri Mukherjee
Ms. Susmita Biswas
....for the State
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Party/Parties appear in the order of their
name/names as printed above in the cause-title.
The writ petition was considered on several dates
by this Court and, finally by the order dated 15th
December, 2017 this Court, upon consideration of
several Reports as filed by the appointed Surveyor, the
Respondents/Howrah Municipal Corporation (HMC) and
the Respondents/Local Police Authority directed as follows:
(A) That since learned Counsel for the Respondent/HMC is unable to contradict that Premises No. 159/2/1 and 159/3 are unfettered and unencumbered properties belong to the writ petitioner, steps shall be taken by the Respondent/HMC to remove any permanent, temporary or quasi permanent structure/installation from the said premises including, Premises No. 159/3 as noticed in the Police Report; (B) The petitioner, during the removal of the premises, shall be entitled to appoint security guards to protect her right, title, 3 interest/possession over the two premises Nos. 159/2 and 159/3;
(C) The Respondent No. 5/Officer-in-Charge, Malipanchghora PS shall take steps to ensure that the directions at (A) and (B) above are implemented.
Today, learned Advocate General leading Mr. Sandipan Banerjee, learned Counsel for the Respondents/HMC appears in support of CAN 1296 of 2018, which is an application for recall of the order of this Court dated 15th December, 2017. Learned Advocate General argues that subsequent discovery of the Assessment Register/Book of the HMC has found the petitioner not to be either an owner or occupier of the premises now in issue, i.e. 152/2/1. Therefore, till the writ petitioner satisfies this Court that the premises No. 152/2/1 are under her exclusive ownership, the petition cannot be held to be maintainable.
It is further submitted that the writ petitioner should establish her title in civil proceedings prior to seeking and, being granted the reliefs by the order dated 4 15th December, 2017 (supra). It is argued that since the land does not belong to the petitioner, she has no right to make a prayer, as made in the writ petition, for assistance through Court commanding the Respondents to secure the property.
Arguing on behalf of the proposed Added Party Respondent/Applicant in CAN 1329 of 2018, Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel, submits that the proposed Added Party Respondent/Applicant is a Club registered under the West Bengal Societies Registration Act, 1961. Mr. Bhattacharya claims that the Club is in possession of the now sole premises in issue, i.e. 159/2/1, J.N. Mukherjee Road, Salkia, Howrah - 711106 for nearly half a century. Being in possession the proposed Added Party Respondent/Applicant for addition of party must be heard in the writ petition.
In the event, the proposed Added Party Respondent/Applicant is impleaded to the writ petition, its further application, being CAN 1332 of 2018 for modification and/or recalling of the order of this Court 5 dated 15th December, 2017, should be taken up for consideration.
On behalf of the purported occupier, one Mr. N. Dhang, Mr. Srijit Chakraborty, learned Counsel, seeks to intervene and submits that the club has been granted permissive possession of the premises now in issue, i.e. 159/2/1 by his client and, such permissive possession is not denied.
Mr. Mitra, learned Senior Counsel appearing for the petitioner answers the above recorded arguments by first raising the fundamental issue that the Respondents/HMC has never claimed itself to be in ownership of the property in issue, i.e. 159/2/1. Therefore, the Respondents/HMC cannot, in respect of the property of which it is not the owner, claim to do any kind of work in the name of extending public facilities.
Second, Mr. Mitra argues that the Assessment Register/Book of the Respondents/HMC demonstrates that the petitioner is at least the co-owner of the premises in issue, i.e. 159/2/1. The name of the late 6 husband of the petitioner, one Keshab Chandra Bajaj, has been recorded as the co owner of 159/2/1 and, there is the specific pleading in the writ petition that the petitioner obtained the premises in issue by way of a Deed of Gift from her late husband.
Therefore, Mr. Mitra argues that the writ petition is maintainable at the instance of the writ petitioner/co owner of 159/2/1.
Third, Mr. Mitra submits that it is an admitted position that all the premises have been amalgamated into a single premises being 159/3. The amalgamation would be evident from the total area of 159/3 being comprised of the individual areas of the amalgamated premises being 159/2 and 159/2/1.
In view of the amalgamation the petitioner enjoys all rights as a owner qua the premises in issue, including 159/2/1 and, on the face of the records is not required to establish anything further before a Civil Court.
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Fourth, Mr. Mitra points out to the clear inconsistencies in the stand on behalf of the Respondents/HMC as well as the proposed Added Party Respondent/Applicant/the Club. Mr. Mitra submits that the Report of the Municipality, as earlier filed through its Municipal Commissioner on Affidavit and considered by this Court through its earlier orders, speaks of the fact that the land in issue connected to 159/2/1 is lying vacant. Such is also the stand taken by the Respondents/HMC in CAN 1296 (supra) as well as the Appointed Surveyor of this Court. Accordingly, the Club cannot claim to be in possession of 159/2/1 for the past half a century now.
Having heard the parties and considering the materials placed, this Court is of the view that all the three applications being CAN 1296 of 2018, CAN 1332 of 2018 and CAN 1329 of 2018 appear to be in the nature of an afterthought.
This Court finds no reason to admit CAN 1296 of 2018, CAN 1332 of 2018 and CAN 1329 of 2018 by simply creating a scenario conducive to legal semantics 8 when, the hard facts on the ground show that neither the Club nor, the Respondents/HMC, have demonstrated their rights over the land in issue.
Therefore, CAN 1296 of 2018, CAN 1332 of 2018 and CAN 1329 of 2018 stand dismissed without inviting Affidavits.
The order dated 15th December, 2017 stands. Urgent certified photocopy of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.
(Subrata Talukdar, J.)