Calcutta High Court (Appellete Side)
Rashida Hamid (Ahmed) vs Jubaida Hamid & Ors on 2 July, 2018
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
AND
The Hon'ble Justice Arindam Mukherjee
MAT 315 of 2018
with
CAN 2367 of 2018
Rashida Hamid (Ahmed)
Vs.
Jubaida Hamid & Ors.
Mr. Ranjan Deb, Sr. Advocate,
Mr. Ataur Rahman
Mr. Javed Majid
... For the applicant/appellant.
Mr. Wasim Ahmed
Mr. Prashant Kumar Tripathi
... For the respondent no.1/writ petitioner.
Mr. Somenath Ghosh, led by
Mr. Tapan Kumar Mukherjee, AGP,
... For the State.
Mr. Alok Kumar Ghosh
Ms. Sima Chakraborty
... For KMC
Mr. Sumanta Kumar Aich
... For the respondent no. 12.
Heard on: 02.7.2018.
Judgment on: 02.7.2018.
Biswanath Somadder, J.
2 The only question which falls for consideration in the present appeal is whether the writ Court while deciding an issue as raised by the writ petitioner Zubaida Hamid in W. P. 11374 (W) of 2015 has gone beyond the scope of the reliefs which she has prayed for. The answer to this question will decide the fate of the present appeal which has been preferred by Zubaida Hamid's sister, Rashida Hamid (Ahmed).
Before we go into the facts of the instant case, it appears from the records that while moving the writ petition, being W. P. 11374 (W) of 2015, Zubaida Hamid had not made her sister Rashida Hamid (Ahmed) as a party to the writ proceedings. After the impugned judgment and order dated 16th February, 2018, was passed by the learned Single Judge, Rashida Hamid (Ahmed) filed an application before this Court, being CAN 2719 of 2018, seeking leave to appeal against the said impugned judgment and order dated 16th February, 2018. By an order dated 14th May, 2018, this Court had allowed Rashida Hamid (Ahmed)'s application by granting her leave to appeal against the impugned judgment and order dated 16th February, 2018. On that very date, i.e., 14th May, 2018, this Court had directed the Kolkata Municipal Corporation to file a report in the from of an affidavit stating therein specifically as to whether the allegations made by Rashida Hamid (Ahmed) in her application for stay have any basis or not. In the said report, the concerned authority of Kolkata Municipal Corporation was also directed to disclose all relevant records for the purpose of effective adjudication of the matter. Consequently, on 20th June, 2018, the report in the form of an affidavit filed in Court on behalf of the Kolkata Municipal Corporation was filed and taken on record.
Now, let us turn to the facts of the present case. In the writ petition filed by Zubaida Hamid, she claimed to be the owner/landlord of premises no. B/168A/H/1, Tiljala Road, 3 P.S. - Karaya, Kolkata - 700 046. According to her, such ownership came by way of a Gift Deed dated 10th April, 1975. The specific nature of complaint as sought to be made by the writ petitioner appears to be that the private respondent nos. 5 to 13 had sunk an unauthorized power driven tubewell at her premises without taking permission from the concerned authority. The principal prayers made in the writ petition are setout hereinbelow: -
"a) A writ of in the nature of Mandamus and/or order or orders and/or direction or directions of the nature commanding the Respondent Nos. 1 to 4 to take immediate action to close down the unauthorized operation of power driven tubewell at premises no. B/168A/H/1, Tiljala Road, P.S. -
Karaya, Kolkata - 700 046 by taking into consideration the representation made by the Petitioner through her Ld. Advocate Miss Sadya Hassan's letter dated 27.04.2015.
b) An order restraining the Respondent nos. 5 to 13 from operating the unauthorized power driven tubewell at premises no. B/168A/H/1, Tiljala Road, P.S. - Karaya, Kolkata - 700 046."
During the course of hearing of the writ petition, the appellant herein, Rashida Hamid (Ahmed), took out an application for addition of party, being CAN 6228 of 2015. The main contention of Rashida Hamid (Ahmed) in the said application was that the premises-in- question, being no. B/168A/H/1, Tiljala Road, was actually a wrong recording of 168A, Tiljala Road, P.S. Karaya, Kolkata - 700046 and that the writ petitioner, Zubaida Hamid, was not the owner of the said premises. In the application for addition of party, Rashida Hamid (Ahmed) categorically stated that the writ petitioner had suppressed the material fact 4 of the existence of a Title Suit, being T.S. No. 08154 of 2013, which is pending before the learned 2nd Civil Judge (Sr. Division) at Alipore as well as another proceeding, being Misc. Case No. 25 of 2011, which was filed by one of the private respondents, namely, Ram Lal. Rashida Hamid (Ahmed) also stated in her application for addition of party that the writ petitioner was trying to usurp her property illegally. Paragraph 14 of the application for addition of party is reproduced hereinbelow: -
" That the applicant right, title and interest will be at stake if any order is passed covering her property without adding her party in present W.P. No. 11374 (W) of 2015 and without giving her an opportunity of being heard."
The learned Single judge while keeping the application for addition of part pending to be decided upon exchange of affidavits, proceeded to pass the following order: -
" ... In view of the above and after hearing learned counsel appearing on behalf of the respective parties including the private respondent and the Kolkata Municipal Corporation, and upon perusing the affidavit filed by the K.M.C. it is crystal clear that the tannery business is being continued on the said premises bearing no. B/168A/H/1, Tiljala Road. The notice issued by the K.M.C. dated 12th February, 2018 has gone unheeded and the petitioner submits that the work continues unfettered.
The above business cannot be allowed to continue. The apathy of the K.M.C. in allowing the same to continue for over a decade is unfathomable and unless this Court orders immediate closure of the same, the Supreme Court mandate and direction would continue to be flouted unabashedly. This Court directs the Deputy Licence Officer, (H.Q.), Licence Department, 5 K.M.C. to take assistance of the respondent no. 4 being the Officer-in- Charge, Karya Police Station, Kolkata to stop the business being carried out at the impugned premises being no. B/168A/H/1 and to seal the said premises. The said Officer-in-Charge, is directed to go with adequate force to carry out the task in an adequate manner. The Officer-in-Charge shall prepare an inventory of all the goods lying in the said premises and specify the approximate amount of leather (in kilograms) and the number of machines lying in the said premises. The Officer-in-Charge, shall be guided by the Deputy Licence Officer, (H.Q.), Licence Department, K.M.C. The respondent no. 4 shall take note that the impugned premises has been wrongly numbered as 168A, Tiljala Road (this was pointed out by the Corporation in its earlier report).
The respondent no. 4 is directed to file a compliance report in the form of an affidavit containing the details of the above task carried out before this Court on 5th March, 2018."
On a plain reading of the portion of the order - as quoted above - reveals that the learned Single Judge has proceeded to grant such reliefs to the writ petitioner, Zubaida Hamid, which are well beyond the principal reliefs she has originally prayed for in her writ petition. This is clearly impermissible. Thus, the answer to the question posed by this Court at the outset is in the affirmative.
We are, therefore, of the view that the impugned judgment and order date 16th February, 2018, is liable to be set aside on this ground alone and is accordingly set aside. 6
The appellant, Rashida Hamid (Ahmed), shall be added as a party to the writ proceedings by the learned Advocate-on-Record of the writ petitioner within a week from date upon necessary amendment of the cause-title of the writ petition. An amended copy of the writ petition shall be served upon the learned Advocate-on-Record of the appellant, Rashida Hamid (Ahmed), within a week therefrom.
Rashida Hamid (Ahmed) and all other respondents in the writ petition shall file their respective affidavits-in-opposition within three weeks thereafter. Reply, if any, within a fortnight therefrom.
The writ petition shall be heard by an appropriate Bench upon exchange of affidavits as directed hereinbefore.
The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) (Arindam Mukherjee, J.) ap