Calcutta High Court (Appellete Side)
The State Of West Bengal And Others vs Goutam Patra on 15 June, 2018
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble The Chief Justice Jyotirmay Bhattacharya.
AND
The Hon'ble Justice Abhijit Gangopadhyay.
MAT 1746 of 2017
with
CAN 11983 of 2017
The State of West Bengal and Others
-Versus-
Goutam Patra
For the Appellants : Mr. Amal Kumar Sen, Adv.
Mr. Sabyasachi Mondal, Adv.
For the Respondent : Ms. Debalena ganguly, Adv.
Mr. Sanjeeb Seni, Adv.
Ms. Payel Dasgupta, Adv.
Mr. Shaunak Mitra, Adv.
Mr. Sukrit Mukherjee, Adv.
Mr. Santanu Chatterjee, Adv.
Mr. meghnath Dutta, Adv.
Ms. Reshmi Ghosh, Adv.
Heard on : 05.06.2018, 08.06.2018
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Judgement on : 15th June, 2018
Jyotirmay Bhattacharya, CJ. :-
This Mandamus Appeal is directed against the judgement and/or order passed by the learned Single Judge of this Court on 6th September, 2017 in a writ petition being W.P. No. 7677 (W) of 2014 at the instance of the appellants being the respondents in the writ petition.
By the impugned order the State respondents, namely the appellants herein, including the Medical Superintendent, Medical Collage Hospitals, Calcutta were directed to reinstate the writ petitioner's PCO in or near the ERCB ward near the pump room and reconstruct the PCO with all facilities that were existing at the time of its demolition, within 8 weeks of communication of the order.
The legality of the said order passed by the Writ Court is under challenge in this Mandamus Appeal in the facts of the present case. In October, 1993 the Superintendent of Medical Collage and Hospital, Calcutta by a letter of even date permitted the writ petitioner to install one (1) handicapped attendant type granted PCO with 3 incoming call facility at a place opposite of Green Building, Medical College Hospital having measurement of 6' x 7' feet with a rider to construct a kiosk at his own cost. The said permission was granted to the writ petitioner after considering his Orthopaedic handicappedness.
In September 1998 the Superintendent of Medical Collage and Hospital, Calcutta by another letter of even date permitted the writ petitioner to avail himself of the allotted space measuring 10' x 10' feet breadth with 12 feet height at the Eastern part of C.B. beside pump room, for installation of STD/ISD Pay Phone booth. The permission which was granted to the writ petitioner in 1993 was not the subject matter of the writ petition. The permission which was granted to the writ petitioner in 1998 was the subject matter of the writ petition; inasmuch as the Medical Superintendent vide letter dated 27th March, 2014 asked the writ petitioner to shift his PCO booth from Emergency Gate No. 2 to other place, as the Hospital authorities needed that space for expansion of its public services. The writ petitioner refused to shift the said PCO booth from the space allotted to him in terms of the permission granted on 23rd September, 1998 as such permission was granted to him for his enjoyment 4 during his life time. Admittedly, the writ petitioner was using the said booth for carrying on business dealing in snacks items, mineral water, mobile recharge system, etc.. Carrying on of such business was done by the writ petitioner illegally as he was never permitted to do so by the Hospital authorities.
Anticipating that the Hospital authorities will take steps to remove the petitioner's said PCO from the space allotted to him in 1998, the writ petitioner filed the instant writ petition seeking injunction upon the Hospital authorities for preventing them from disturbing the petitioner from carrying on his business from the said PCO booth.
An interim order in similar form was also prayed for. Though such interim order was not granted in favour of the writ petitioner, but the hospital authorities were directed to provide an alternative space within the hospital compound for relocation of the writ petitioner's business therein.
Fact remains that the space where the writ petitioner was carrying on the aforesaid business in terms of the permission granted to him in 1998, was required by the hospital authorities for expansion of the gate leading to the emergency department of the 5 hospital. It is also an admitted positon that the said PCO booth was removed by the hospital authorities during the pendency of the writ petition and the hospital authorities have also started the work for expansion of its gate leading to the emergency department of the said hospital for giving better services to the stake-holders.
Considering the fact that the writ petitioner is a physically handicapped person, the Writ Court held that civil rights which were conferred on the writ petitioner by grant of such facilities could not have been taken away without giving an opportunity to the writ petitioner to defend himself and without hearing him.
Taking note of the fact that the said PCO booth was dismantled and removed from the said allotted space, the Writ Court directed the State respondents, including the Medical Superintendent, medical college hospital, Calcutta, to reinstate the writ petitioner's PCO in or near the ward C.B. pump room and reconstruct the PCO with all facilities that were existing at the time of dismantle the said PCO within 8 (eight) weeks of the communication of the said order. The legality of the said order is challenged in this Mandamus Appeal.
Let us now test the legality of the said order in the facts of the aforesaid case. Admittedly permission was granted to the writ 6 petitioner for running a PCO booth over the space allotted to him in 1988. Thus, a licence was created in favour of the writ petitioner for running the said business over the allotted space in terms of Section 52 of The Indian Easement Act, 1882. Section 62 of the said Act deals with the various situations, under which such licence is deemed to be revoked. Section 62(d) provides that licence is deemed to be revoked where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right. Section 62(f) provides that the license is deemed to be revoked where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable. Section 64 of the said Act deals with the licensee's rights on eviction. It provides, where a license has been granted for consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he constructed; he is entitled to recover compensation from the grantor.
Here is the case where we have seen that the writ petitioner abandoned the business which he was permitted to carry on over the said allotted space by constructing of PCO booth thereon. As such, 7 we have no hesitation to hold that license was deemed to have been revoked from the date when he abandoned his business for which permission was granted to him through the said PCO booth installed in the allotted space and started carrying on business of different kind as mentioned above.
Admittedly the kiosk/PCO which was constructed over the allotted space has been destroyed and/or removed therefrom. As such, in view of Section 62(d) of the said Act, the licensee can no longer exercise his right from the said allotted space.
Though the license was created for the life time of the writ petitioner, no consideration was received by the grantor for grant of such license in favour of the writ petitioner. As such even on eviction, the writ petitioner is not entitled to recover any compensation from the grantor namely, the hospital authorities. The writ petitioner thus, does not have any statutory right and/or legal right which he can enforce by way of invoking the writ jurisdiction of this Court. As such we are of the view that the Writ Court was not justified in issuing the direction either for reinstatement of the petitioner's business or by directing the Hospital authority to reconstruct the PCO booth over the 8 space which was allotted to him by virtue of the permission granted in 1998.
In course of hearing of this appeal Mr. Sen, learned advocate appearing for the Hospital authority submitted that his client is agreeable to allot an alternative space to the writ petitioner for relocating his business therein, in terms of the interim direction passed by the Writ Court. As a matter of fact, by letter dated 6th June, 2018 two alternative locations were offered to the writ petitioner for relocation of the petitioner's PCO booth, permitting him to carry on PCO booth business activities and mobile phone related activates therein. The writ petitioner accepted the proposed location No.1 and agreed to relocate his PCO booth therein. The proposed location No.1 is on the North West corner of E.R.C.B. building besides existing coffee shop measuring 10' x 10' feet, as per site map and/or plan depicted therein as proposed location No.1 enclosed with the said letter. The writ petitioner acknowledged the acceptance of the proposed location No.1, on the letter written by the Hospital authorities. The writ petitioner, however, by its letter dated 7th June, 2018 requested the Hospital authorities for allowing him to carry on business activities like selling ice-cream, hot milk, hot coffee, water, 9 xerox, lamination, cold drinks, egg bread toast, snack items and biscuit items to the patients, their relatives and also the workers and doctors, from the proposed location No.1.
Mr. Sen, learned advocate, submitted after taking instruction from his client present in Court that his client is neither authorised to give such permission nor is agreeable to give such permission for expansion of the business activities of the writ petitioner.
Having regard to the fact the Hospital authorities offered him an alternative space for relocation of the writ petitioner's business therein and the writ petitioner having accepted such offer of the Hospital authorities, this Court disposes of the appeal with a direction upon the Hospital authorities to allow the writ petitioner to construct a PCO booth over the alternative space i.e. the proposed location No.1; and permit him to carry on such business activities therefrom, which the petitioner was permitted to do in terms of the Hospital authorities' letter dated 6th June, 2018 which is kept with the record. Needless to mention here that in case the writ petitioner renews his prayer for expanding his business activities through the PCO booth to be constructed on the relocated space, before the appropriate authority, the appropriate authority may consider the 10 petitioner's such prayer sympathetically; with this rider that the writ petitioner will be permitted to expand his business activities only if permission for such expansion of business activities is granted to the writ petitioner by the competent authorities. With these directions the appeal is disposed of. The CAN 11983 of 2017 is also disposed of.
No order as to costs.
Urgent photostat certified copy of this judgement and order, if applied for, be furnished to the appearing parties on priority basis.
(Jyotirmay Bhattacharya, C.J) I agree.
(Abhijit Gangopadhyay, J.)