Calcutta High Court
Secretary, Parnasree Club vs State Of West Bengal And Ors. on 5 February, 1999
Equivalent citations: AIR1999CAL197, AIR 1999 CALCUTTA 197
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. The petitioner being a Secretary of a Club, viz., Parnasree Club which in its turn is a registered organisation under the Societies Registration Act has sought for relief in the form of Writ of Mandamus directing the respondents to act in accordance with law by acquiring the land under Dag Nos. 590 and 593 situate at Parnasree Behala for the purpose of building a Park for public of that locality, and further direction upon the Municipal Authority not to mutate the name of any private respondent in respect of the said plots of land and further a Writ of Certiorari directing the respondents to produce and certify the whole record so that conscientious justice be done by quashing the order passed in C.O. No. 4178 (W) of 1993.
2. The aforesaid reliefs are claimed on the basis of the facts as stated in the writ petition and substance of which is mentioned hereunder.
3. The subject-matter of the land being Dag Nos. 590 and 593 of Khatian No. 3627 under Mouza Behala were acquired by the Government of India under Rule 75A(2) of the Defence of India Rules for the defence purpose. This acquisition was done by and under a notice published in the Calcutta Gazette on 31st January, 1946. Subsequently the Central Government handed over the said plots of land to the Government of West Bengal for the need of its department of relief and rehabilitation for rehabilitation purpose, viz., to accommodate the migrated persons from the then East Bengal. Though the aforesaid land was acquired and subsequently the possession thereof was handed over to the Government of West Bengal for construction of housing, the land was always being used as a playground of the children of that locality. The aforesaid Club, viz., the Parnasree Club has been controlling the said land for its user. Sometimes in or about 1991 one Alef Nabi Mistri most illegally and clandestinely purported to have transferred the said two plots of land in favour of the respondent Nos. 10 to 1-3. This land now has been grabbed by the promoters who want to build up a multi-storied building and thereby they are attempting to destroy the playground so also environment of that locality. The said vendor had no title to transfer the interest of land in favour of the respondent Nos. 10 to 13. The said private respondents in collusion with and connivance of the purported vendor have been able to obtain an order of release from this Court passed by His Lordship the Hon'ble Mr. Justice Tarun Chatterjee in Civil Order No. 4178 (W) of 1993. Since no title has been passed on to the respondent Nos. 10 to 13, question of mutation of their names in place and stead of the true owner in the records of the Calcutta Municipal Corporation does not and cannot arise. The order of Justice Chatterjee does not and cannot change the title of the said land which still belongs to the Central Government.
4. Mr. Arun Prakash Chatterjee, the learned Senior Advocate, appearing on behalf of the writ petitioner, submits after highlighting the facts mentioned therein and advances argument that the said Club has been in possession of the said plots of land uninterruptedly for a period of more than 30 years. The private respondents have clandestinely managed to obtain a conveyance from the erstwhile so-called vendor who did not have any right, title and interest therein to convey the property. This property had vested unto Central Government which in its turn handed over to and/or transferred in favour of the State of West Bengal. So the private respondent Nos. 10 to 13 cannot have any right, title and interest to get their names mutated in place and stead of the State of West Bengal and/or Central Government. Mr. Chatterjee further submits that even if such mutation having been effected the same should be cancelled and/or set aside as the said private respondents had not acquired any title.
5. Mr. Chatterjee, in his alternative argument, submits that even by interpretation of the order passed by Justice Chatterjee if it is construed that State of West Bengal has relinquished its right, title and interest in the said land in question then the said land can be acquired once again by the State of West Bengal for the public purpose as the said plots of and is being used as a playground of children of that locality through the aforesaid Club. This prolonged use of this land in this way has proved to be the public purpose. So when there is existence of public purpose, this Court should issue a writ of mandamus directing the appropriate Government to acquire the said plots of land.
6. Mr. Chatterjee further submits on the question of locus standi that the said Club which is represented here by the writ petitioner, has been in possession of the said land in question uninterruptedly for a period of more than 30 years and this Club cannot be evicted without due process of law and this procedural safeguard against eviction constitute a legal right. So this Club can maintain this writ petition. He argues further that when the private respondents do not have any semblance of right, title and interest of the land, mutation of their names in the records of right in the Calcutta Municipal Corporation is wholly uncalled for under the law even if as on today it is done the same is liable to be cancelled and/or set aside.
6A. Mr. P.K. Roy, learned Senior Advocate, appearing with Mr. Ajoy Chatterjee and Miss Tapati Ghosh, learned Advocates on behalf of the respondent Nos. 10 to 13, submits that the writ petitioner is a Secretary, is not an individual person. So, Secretary in its designation cannot be a citizen of India, so writ petition is not made by a citizen. He further argues that in order to maintain a writ petition for issuance of a writ of Mandamus, the petitioner is to satisfy two conditions, viz., the petitioner has got existing legal right, vis-a-vis, a statutory obligation to be discharged by the State. In this case, the petitioner is neither owner of the property admittedly and its possession (even it is assumed for argument sake) is in capacity of trespasser who cannot maintain this writ petition. In support of his submission he relies on the following decisions, , , and (1995) 2 Cal LT (HC) 406. He submits that there is no averment as to the nature of the statutory obligation to be discharged by any of the respondents. Even going by the prayer (a) and (b) made in the writ petition one cannot ask for a Writ of Mandamus against the State compelling it to acquire a particular property. This power under the Acquisition Act is not a duty nor even a power coupled with duty. So two conditions for which Writ of Mandamus is required to be issued are not fulfilled. He also argues that Writ of Mandamus cannot be issued in ease of dispute relating to the title of the property.
7. In his argument Mr. Roy contended that the prayer (a) cannot be granted as. thq same, is contradictory in nature having regard tq the averment made in the writ petition. It is the case of the writ petitioner that the property vests in Central Government and/or the State Government. The property belongs to the Government cannot be acquired once again. So the prayer (a) cannot be maintained at all. So far the prayer (b) is concerned it is wholly infructuous as the mutation has already been effected in the name of his clients. According to Mr. Roy his clients purchased the property lawfully from its vendor whose predecessor-in-interest had lost title in view of acquisition but such transfer has been validated and/or perfected by the order of Justice Chatterjee whereby the State Government released the said land from acquisition. So far prayer (c) is concerned as it is contended by Mr. Roy, the same cannot be granted at all under the law as this Court sitting in a co-ordinate jurisdiction cannot set aside and/or upset the order passed by Justice Chatterjee which otherwise reached its finality as none of the parties had challenged nor did the writ petitioner do despite his knowledge in the year 1995 in appropriate proceedings.
8. I have heard the submissions of all the learned lawyers of parties appeared before me. My first task would be to find out the locus standi of the writ petitioner.
9. Mr. Roy submits that the description of the petitioner being citizen of India is absolutely absurd. No individual person has filed this writ petition. The official of a society cannot be a citizen of India. In my view this is a hypertechnical point. Moreover, the petition has been verified by the Secretary himself. In his affidavit the name of the Secretary has been disclosed. The name of the Secretary is Sri Amp Chowdhury. Therefore, this technical defect of omitting name in the Cause Title is of no effect. So, I hold that the writ petition so far the description of the party is concerned is perfectly maintainable. Consequently I am unable to accept the submission of Mr. Roy on that score.
10. My next task would be to find out the locus standi of the writ petitioner having regard to the subject-matter of the petition. Admittedly the writ petitioner has no title to the land in question. The writ petitioner in order to maintain this petition has stated that the Club concerned is in possession of the land in question through user and utilization of the same as playground by the local boys and girls who are the members of and/ or having connection to this Club. So the case of the writ petitioner is that the Club is in constructive possession of the land in question, as such they have interest in the land. Maintaining of writ petition on the ground of having interest in the land is one thing and to have reliefs of the kinds mentioned in the prayer portion is another thing. The writ petitioner has prayed for a Writ of Mandamus commanding the respondents (even including private respondents) to act in accordance with law to acquire the land for building up a Park for the purpose of utilization of the people of the locality. In order to obtain this relief the petitioner has to establish before me that the relief sought for in prayer (a) has got nexus to the petitioner's legal right corresponding to the respondents' legal duty to perform. Petitioner has not stated the nature of the legal right existing in his favour. Firstly, private respondents cannot have any power nor any duty to perform under the law for acquisition of the land. Under the provisions of the Acquisition Acts a citizen of India cannot be said to have been vested with legal right to ask for acquisition of lands. Under the provisions of Sections 535, 536 and 537 of the Calcutta Municipal Corporation Act, 1980 there is power for acquisition of the land with agreement of the owner, and through the instrumentality of the State Government who is in its discretion, to acquire the land under the provision of 1894 Act. This power can only be exercised upon subjective satisfaction of the State Government concerned with regard to the public purpose. It is neither a legal duty nor a power coupled with the duty. Under the provisions of the Acquisition Act as aforesaid the petitioner has not been given with any legal right to enforce the above power. This power cannot be termed as a enforceable legal duty unless the same is coupled with duty and this is the settled law. I hold, in this case, so far the question of acquisition of the land is concerned, the petitioner has failed to establish his legal right and failed to establish that the State-respondents, as well as, the Calcutta Municipal Corporation have any statutory duty to perform. The argument of Mr. A. P. Chatterjee learned Senior Advocate, is wholly far-fetched so far the prayer (a) is concerned and the same is not accepted by me. As rightly submitted by Mr. Roy that in this case the petitioner has failed to satisfy the preconditions for issuance of Writ of Mandamus in terms of prayer (a) as it has been laid down in the decisions and .
11. In the decision , in its paragraph 9 it has been held, "no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something."
12. The aforesaid principle laid down by the Apex Court has also been followed in a subsequent decision of the same Court in a case . In paragraph 33 of the said decision it is held amongst others -
"there must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance."
13. So, accepting the aforesaid principles and the submission made by Mr. Roy, I hold that no relief in the nature of Mandamus can be granted as prayed for in terms of prayer (a) of the petition.
14. In any event, as Mr. Roy has rightly pointed out, this prayer (a) is contradictory having regard to the averment made in the writ petition. It is the case of the writ petitioner that the respondent Nos. 10 to 13 have not acquired any right, title and interest as the land vested in Central Government and the vested property cannot be purchased. So, the vendor of Mr. Roy's clients had no right, title and interest in the land. If this averment is to be accepted to be correct though it has been denied and disputed by Mr. Roy's clients, the land belongs to Government cannot be acquired under the provisions of the Land Acquisition Act and this is settled law. So factually this relief cannot also be granted.
15. So far the prayer (b) is concerned it has become now infructuous as it appears in the affidavit-in-opposition that mutation had already been effected and so also admitted by the learned lawyer Mr. Partha Sarthi Basu appearing for the Corporation Authority. Once mutation has been effected rightly or wrongly and no challenge has been thrown against such mutation the Court cannot upset the same even by applying the theory of moulding relief suiting to circumstances. Moulding of relief is not ordinarily done by the court and it can be done only when during the pendency of the lis some change having taken place and further when any relevant fact having bearing to the litigations were unknown to the parties and it is discovered later on and in those cases for the ends of justice the prayer can be moulded. In this case, the writ petitioner had knowledge and/or have had occasion and/or opportunity to have knowledge of factum of mutation. But the writ petitioner has chosen not to take any step for challenging such mutation. Therefore, I am not inclined to mould the prayer. Moreover, a mutation in the Municipal records does not create and/or improve the title in favour of the person whose names are mutated. Such mutation can be changed and/or altered on a subsequent stage on a changed circumstances. Therefore, this relief can also not be granted.
16. Mr. Chatterjee, however, fairly relinquished the other reliefs being prayer (c). So, I need not grant such relief.
17. Mr. Chatterjee, further submits, that order of Justice Chatterjee is of no effect as regard the title of Mr. Roy's clients is concerned. In this writ jurisdiction I have not been called upon to decide the question of title nor I will venture to do so, particularly, on the facts and circumstances of this case. So the question of title are kept at large and the same have been left out by me.
18. On the facts and circumstances, I dismiss the writ petition but without awarding any costs.