Calcutta High Court (Appellete Side)
(Metropolitan Infrapro Pvt. Ltd vs The on 14 March, 2019
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436/CL
14.03.2019
rrc
W.P.L.R.T. 24 of 2019
(Metropolitan Infrapro Pvt. Ltd. Vs. The
State of West Bengal & Ors.)
Mr. Sakti Nath Mukherjee, Sr. Advocate
Mr. Subrata Mukhopadhyay
Ms. Basabi Raichoudhury
......For the petitioner
Mr. Chandi Charan De, Addl. Govt. Pleader
Mr. Anirban Sarkar
......For the State
Mr. Biswajit Mukherjee
Ms. Era Ghose
......For the K.M.C.
Mr. Sumant Kumar Gupta
....... Respondent no. 9 (in person)
1. An order dated 11th March, 2016 passed by the Deputy Controller, Thika Tenancy, Kolkata in Misc. Case No. 17 of 2015 was the subject matter of challenge before the West Bengal Land Reforms and Tenancy Tribunal in O.A. 936/2016 (LRTT) at the instance of the present petitioner. The tribunal by its judgment and order dated 18th September, 2018 has set aside the impugned order and ordered a remand. The Controller, Thika Tenancy, Kolkata was directed to hear Misc. Case No. 17 of 2015 afresh and to pass an independent reasoned decision under Section 2 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 and the rules framed thereunder in the light of the observations made in the judgment expeditiously and preferably within six months from date of receipt thereof.
2. Although the petitioner has succeeded before the tribunal, Mr. Sakti Nath Mukherjee, learned senior advocate appearing for it has submitted that presentation of the writ petition has been necessitated to obtain certain clarifications as well as for an order on the Thika Controller not to allow the respondent no. 9 (Sumant Kumar Gupta) to participate in the hearing in terms of the order of remand.
3. Our attention has been drawn to a part of the impugned judgment where the tribunal observed that "Thika Controller is also not the authority to ignore any decision of Kolkata Municipal Corporation on those matters". According to Mr. Sakti Nath Mukherjee, the Kolkata Municipal Corporation (hereafter the 'KMC') is not the competent authority to determine whether the land in question is 'thika land' or not and therefore, any decision that might have been given by the KMC based on a previous report of the Thika Controller dated 13th 3 December, 1996, cannot have binding effect on the Thika Controller while he proceeds to comply with the order of the tribunal and decide the Misc. Case No. 17 of 2015 afresh.
4. It is further contended by Mr. Sakti Nath Mukherjee that the said report dated 13th December, 1996 had been prepared behind the back of the original owner of the subject land, Mr. Amalendu Kumar Kar (the vendor of the petitioner's vendor) and, therefore, the petitioner ought to be granted liberty to challenge such report while the Thika Controller proceeds to decide the matter afresh in terms of the tribunal's order.
5. Finally, Mr. Sakti Nath Mukherjee has urged that the respondent no. 9 had initially misled this Court by claiming himself to be a thika tenant but has conveniently changed such stand later. According to the respondent no. 9, it is one Om Prakash Gupta who is the thika tenant over the subject land; therefore, it is contended that the respondent no. 9 has no authority to attend the proceedings before the Thika Controller.
6. Mr. Biswajit Mukherjee, learned advocate appearing for the KMC submits that whatever decision had been taken by the Municipal Commissioner with regard to revocation 4 of the plan sanctioned by the KMC for erection of building on the subject land as well as ordering demolition of the construction standing thereon was based on the report of the Thika Controller and no independent decision had been taken by the KMC at any point of time that the subject land being thika land, sanction of building plan in respect thereof, as prayed for by the petitioner, was impermissible.
7. The respondent no. 9 appears 'in person'. According to him, his uncle (Om Prakash Gupta) was the thika tenant of the subject land which is a thika land and therefore, it was the petitioner who misled the KMC while obtaining grant of sanction of a building plan to raise a multi- storied building on the subject land. It is vehemently urged by him that none of the prayers of the petitioner should be entertained and that the proceedings before the Thika Controller should be allowed to continue till it reaches a logical conclusion.
8. Mr. De, learned Additional Government Pleader has appeared for the State. It is his submission that the tribunal's order would be implemented by the Thika Controller forthwith.
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9. We have heard learned advocates for the parties as well as the respondent no. 9 appearing 'in person'. In view of the submission made by Mr. Biswajit Mukherjee that the KMC did not take any independent decision but relied on the report of the Thika Controller dated 13th December, 1996, which was placed before the Municipal Commissioner leading to revocation of the sanction granted for erection of a building on the subject land as well as the order for demolition thereof, we are of the view that the Thika Controller in proceeding to decide Misc. Case No. 17 of 2015 shall not be influenced by any decision given by the KMC.
10. Insofar as the report dated 13th December, 1996 is concerned, we grant liberty to the petitioner to challenge the contents thereof before the Thika Controller in accordance with law. The extent of weight to be attached to such report is left to the discretion of the Thika Controller, obviously upon hearing the submissions advanced by the petitioner.
11. Regarding participation of the respondent no. 9 in the proceedings, we observe that it shall be obligatory for the Thika Controller to put the respondent no. 9 on notice not only because he had rolled the ball in motion leading to 6 the proceedings in question but also because he was a party to the original application. If any submission is advanced on behalf of the petitioner that the submission of the respondent no. 9 should not be given any credence, the respondent no. 9 shall be allowed to rebut such submission. The Thika Controller shall proceed to give his decision on such point and thereafter further proceedings of Misc. Case No. 17 of 2015 shall be continued.
12. We hope and trust that the same shall be completed as expeditiously as possible but preferably within a period of four months from date of receipt of an authenticated copy of this order.
13. The writ petition stands disposed of with the aforesaid observation. There shall, however, be no order as to costs.
14. Needless to observe, all points other than those dealt with above are left open for the parties to agitate before the Thika Controller for a decision by him in accordance with law.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. (Saugata Bhattacharyya, J.) (Dipankar Datta, J.)