Feroze Ahmed vs State of West Bengal

Satyabrata Sinha, J.—This appeal is directed against an order dated June 3, 1996 passed by a learned single Judge of this Court in Civil Order No. 17362 (W) of 1995 whereby and whereunder the writ petition filed by the Petitioners-Appellants was dismissed.

The Petitioners are said to be the owners in respect of the premises No. 11/A situated at Harshi Street. According to them there exists a two storied building on the said land and about 50/60 tenants reside therein. The Appellants claim their right title and interest by reason of a Deed of Release dated August 20, 1959. It is alleged that the said premises is now recorded in the register of the Calcutta Municipal Corporation as 11/1/H/4 Harshi Street. It has been contended that the authorities of the Calcutta Municipal Corporation illegally and unauthorisely demolished a portion of the said building and also obstructed ingress to and egress from the said premises. Before the learned trial Judge the Calcutta Municipal Corporation filed an affidavit-in-opposition and also produced the records. An application for vacating the interim order passed therein was also filed. The learned trial Judge upon considering the materials on records while hearing the said application for vacating stay passed the judgment under appeal. Before us also an affidavit-in-opposition to the stay application and a reply thereto have been filed.

Mr. J. Islam, the learned Counsel, appearing on behalf of the Appellants submitted that the authorities of the Calcutta Municipal Corporation not only demolished a part of the structure but despite an interim order passed by this Court by an order dated June 19, 1996, had been obstructing smooth passage of the Petitioners.

Before us, Mr. Islam had produced a large number of documents and submitted on the basis thereof that the Petitioners are rightful owners of the properties in question, and thus, the authorities of Calcutta Municipal Corporation had absolutely no authority, jurisdiction or power in terms of the provisions of the Calcutta Municipal Corporation Act, or otherwise to demolish the entire structure without initiating any appropriate proceeding against the Petitioners in terms of Section 400(1) thereof. It has been pointed out that in the affidavit-in-opposition itself it has been accepted by the concerned Respondents that not only the entire building has been demolished, but they have raised a wall and fixed a gate and locked the same so as to block the passage. for egress from and ingress to the premises in question. According to the learned Counsel, the authorities of Calcutta Municipal Corporation have absolutely no power to take possession of the demolished structure, assuming such demolition was lawful. Furthermore, learned Counsel submitted that Section 400(8) of the said Act having been declared ultra vires by this Court, no action pursuant thereto or in furtherance thereof could be taken.

Mr. Bikash Ranjan Bhattacharya, learned Counsel appearing on behalf of. the Applicants for addition of parties Badshah Khan and 12 others who are allegedly tenants inducted in the said premises supported the contention of Mr. Islam. Learned Counsel further submitted that from the records produced by the Calcutta Municipal Corporation, it would appear that merely a proposal of demolition was made in a note sheet by an officer of the Corporation and the Mayor has merely endorsed the said proposal, although in terms of provision of Sub-section (8) of Section 400 of the said Act, Mayor-in-Council is required to apply its own independent mind on the basis of the materials on records. According to the learned Counsel, therefore, even if Sub-section (8)of Section 400 of the said Act is held to be intra vires, the procedures laid down therein having not been complied with, the entire action must be held to be illegal.

Mr. Arun Prakash Chatterjee, learned Senior Counsel appearing on behalf of Calcutta Municipal Corporation, on the other hand, submitted that the land in question was a khatal being 11/1/H/5 Harshi Street and had been recorded as such. In terms of the provisions of the Khatal Removal Act, the said khatal was allegedly vacated on September 30, 1994, but taking advantage of the municipal elfiction, the Petitioners raised constructions of one storied brick structures with sloped tiled roof without obtaining any sanctioned plan and started construction again. A complaint was received which was enquired into by the Executive Engineer, Borough-V and it has been found that the Petitioners had not only raised construction in violation of the provisions of the said Act, and the building rules framed thereunder, but they had wrongfully been extracting electeical connection from the electric points of Calcutta Municipal Corporation and Calcutta Tramways Company Limited. According to the learned Counsel, the authorities of Calcutta Municipal Corporation had to take a stern action in order to prevent such unauthorised construction. Before us, records maintained by Calcutta Municipal Corporation had been produced. Mr. Chatterjee had also drawn our attention to a sketch map and submitted that from a perusal thereof, it would appear that the writ Petitioners have not approached this Court with clean hands. Learned Counsel pointed out that there are 3 buildings which are 4 storied, and keeping in view the fact that the said buildings are standing for a long period they have not been touched. There exist two other structures marked as ''RTS'' in the said sketch map. Learned Counsel contended that all the tenants reside in the said buildings. It has been pointed out that a seperate passage existed for going to the khatal, which was on the back side of the buildings. According to the learned Counsel, municipal records would show that the land in question, being 11/1/H/5 was recorded as khatal and it has been specifically recorded that 150 buffaloes were found at the relevant time. According to the learned Counsel, the said khatal lands has got nothing to do with the main buildings, access whereto is from their Northern Side thereof i.e. the Harshi Street itself and no obstruction has been put in the matter of egress from and ingress to the said buildings. In this view of the matter, learned Counsel contended that the learned trial Judge has rightly dismissed the writ application. It is, however, admitted that possession of the premises in question has been taken over. It was further pointed out that in view of the conduct of the Petitioners, they are disentitled from having any equitable relief from this Court as in the stay application, insinuations have been made as against the learned trial Judge.

Having heard the learned Counsel for the parties, we are of the opinion that keeping in view the subsequent events and the admitted facts, inter alia, 3 questions arise in the writ application: (1) Whether Section 400(8) of Calcutta Municipal Corporation Act is constitutional, and in any event, whether while passing the impugned order of demolition, statutory requirements thereof were complied with or not; (2) In any event, assuming that the Respondents have the requisite jurisdiction to demolish the structures in question, whether they had any right to take forcible possession of the land in question and (3) Whether the portion of the structure which has been demolished was a part of the structures where the 4 storied buildings are standing. We are further of the view, apart from the aforementioned questions, other questions of fact relating to prima facie title of the Petitioners vis-a-vis right of the State and/or Calcutta Municipal Corporation in or over the land in question would also fall for consideration in the writ petition.

In the instant case, this Court being the appellate Court is not inclined to enter into the aforementioned disputed questions of fact. Furthermore, the questions raised before us evidently had not been raised before the learned trial Judge. The learned trial Judge passed the impugned judgment while hearing the application for vacating this stay and then arrived at a finding of fact that the Petitioners have no title in respect of the premises in question.

A writ Court cannot convert itself into a civil court. It cannot go into the complicated questions of title. It has to decide the lis between the parties within the parameters of the power of judicial review of administration action. In the municipal records, the premises in question was recorded both as ''khatal'' and ''thika tenanted land''. As indicated herein before, there are other subsequent events which are required to be taken into consideration for the purpose of shortening the litigation between the parties.

We may, however, note that although Sub-section (8) of Section 400 of Calcutta Municipal Corporation Act has been declared ultra vires, operation of the said judgment has been stayed by the Appeal Court: The said question, therefore, is still open and is required to be considered by this Court in a given case. In any event, as has rightly been submitted by Mr. Bhattacharya, the court is also required to take into consideration the question as to whether the requisite requirements of law were complied with prior to passing of the said order.

In the premises aforementioned, we are of the opinion that the writ petition should be heard on merits. The Petitioners should be granted an opportunity to file an application for amendment of the writ petition bringing on record the subsequent events. Therein they may also raise other contentions which had not been raised in the writ application. It is needless to point out that keeping in view of the conflicting versions as regards actual position of the buildings as also in view of the fact that there exists a controversy as to whether the entire structures have been demolished or not, we would request the learned trial Judge to appoint a Special Officer who may visit the spot and submit a detailed report before it so as to enable it to consider the same for the purpose of disposal of the writ application and/or passing further interim order.

We also direct that the Applicants, namely Badshah Khan and 12 others be impleaded as parties in the writ application. A copy of the writ application be served upon the Advocate-on-Record of the said Applicants, whereafter it would be open to them to file an affidavit-in-opposition.

Keeping in view the statements made in the affidayit-in-opposition filed by the Respondents that the entire structure has been demolished and they have already taken possession of the land in question, the legality, and validity thereof would also fall for consideration by the concerned Bench. We are of the opinion that the parties should maintain status quo till any other or further interim order is passed by the learned trial Judge wherefor appropriate applications may be filed by the parties.

In view of above, the appeal is treated on day''s list and the application and the appeal are allowed, the judgment and order dated June 3, 1996 is set aside the matter is remitted back before the concerned Bench for hearing the writ petition on merits in the light of the directions made hereinbefore.

Before parting with this case, we may observe that we have not entered into the merit of the matter, in view of the fact that we are of the opinion that there exists various disputed questions of fact and law which are required to be gone into by the writ court at the first instance.

In the facts and circumstances of the case, there shall be no order as to costs.

Urgent certified, if applied for, be supplied on priority basis.