Calcutta High Court
Himalay Paper & Board Mills Pvt. Ltd vs Kolkata Municipal Corporation & Ors on 15 September, 2017
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
WP No.1137 of 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
HIMALAY PAPER & BOARD MILLS PVT. LTD.
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date: 15th September, 2017 Mr. Debabrata Saha Roy, Adv. with Mr. Subhankar Das, Adv.
..for the petitioner Mr. Aloke Kumar Ghosh, Adv. with Mr. Gopal Chandra Das, Adv.
Mr. Debangshu Mondal, Adv.
The Court : The petitioner is aggrieved by the purported recording of area of tank as 4147 sq. meter (62 cottahs approximately) at premises no.20, Seven Tanks Lane, Kolkata - 700 030 in the record book of the Project Management Unit of Kolkata Municipal Corporation.
According to the petitioner, it obtained the lease in respect of the aforesaid premises in the year 1961, which was comprised of land measuring about 13 bighas, 13 cottahs, 7 chittaks and 31 sq. ft. along with the factory shades, dwelling houses, temple, godown, labour quarters and other structures as well. Subsequently, the Corporation took away 1773 sq. mtr. of the land for widening the public road or new road. The proceeding was initiated under the Urban Land (Ceiling & Regulation) Act, 1976 and an inspection was made in course of such proceeding indicating the nature of the structures, area of land and the area comprised in pond. The said authority 2 ultimately passed an order, which was challenged in the writ petition being WP No.16281(W) of 2014, which came up for disposal before this Court on 24.11.2016. The Hon'ble Single Judge allowed the said writ petition upon setting aside the inquiry report, final statement and the orders passed by the Urban Land Authorities which attended finality.
The dispute hinges on the area of the pond situated within the aforesaid premises. It is all along the specific stand of the petitioner that the area of the pond is 5 cottahs which would be evident from various records maintained by the authorities as well as the inspection which was held in one of such proceedings. By the impugned communication, the Director General of Project Management Unit Department of Kolkata Municipal Corporation communicated to the petitioner that as per National Remote Sensing Agency (NRSA), the area of the water body is 4147 sq. mtr. (62 cottahs approximately) and asked the petitioner to produce the relevant documents in this regard.
It appears in course of hearing that the area of the water body was ascertained on visual resolution taken through artificial intelligence device.
Mr. Ghosh, learned Advocate for the Corporation could not apprise this Court whether the aforesaid ascertainment of water body through such means has been recognised either in the Act or Rules framed thereunder. The image captured through artificial intelligence device may or may not be absolutely correct and, therefore, the authorities must take into account the documents, which are in existence since several decades as well as on the basis of physical inspection.
The petitioner was seriously disputing the area of the water body as indicated in the impugned communication and has a serious grievance against the 3 Corporation in not considering the other clinching materials and documents produced in this regard.
At this juncture, Mr. Ghosh says that the matter has not been finally decided nor the authorities have finally determined the area of the water body. It was only a communication to the petitioner as it was found through such device that the area is much larger than what is claimed by the petitioner.
Since the matter is subjudiced and authorities has not determined the same finally, this Court feels that justice would be sub-served if Competent Authority should take a final decision permitting the petitioner to produce and rely upon the several documents in his possession by recording proper reasons. Since this Court has a doubt on the veracity, authenticity and correctness over such exercise adopted by the Corporation, it goes without saying that the Corporation shall not bank upon the same to determine the area of the water body on the available materials either produced by the petitioner or in the record maintained by the Corporation as well as upon physical verification.
This Court, therefore, holds that the impugned communications shall be of no consequences nor shall swayed the mind of the authority before whom the matter is pending. The Water Body Management Board is directed to fix up a date and communicate the same to the petitioner when it would be allowed to produce documents and rely upon in support of its contention as well as the other departments of the Corporation who maintained any relevant records touching the issue involved therein and shall taken a final decision of determining the area of the water body by recording proper reasons.
It goes without saying that the said authority shall also take a decision on the prayer of the petitioner for relocation of the water body within the said premises 4 simultaneously with the decision required to be taken in terms of the direction passed hereinabove.
The entire exercise shall be completed within three months from the date of communication of this order.
With these observations, the writ petition stands disposed of. No costs.
(HARISH TANDON, J.) akg/