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Judgment
Floor,Area
2,245.60 sq. mtrs
3,245.60 sq. mtrs
4,299.995 sq. mtrs.
5,280.346 sq. mtrs
Thereafter, the respondent no.6 initiated another round of litigation challenging the valuation report dated 3 March, 2016 by the Municipal",
Authorities. In an interlocutory application filed in the writ petition, the Hon’ble Division Bench ultimately disposed of an appeal filed by the",
respondent no.6 observing that the respondent no.6 was neither agreeable to pay any amount nor deposit in the same. Accordingly, the Hon’ble",
Division Bench directed that an amount of Rs.5 crores be deposited by the respondent no.6. There was no compliance with that order by either the,
petitioner or the respondent no.6.,
It is next contended on behalf of the Corporation, that the respondent no.6 having failed to obtain any positive order in the different rounds of",
litigations which had been initiated and also choosing not to comply with any of the orders started unlawfully and illegally inducting third parties into,
different portions of the premises. There are also certain Minutes of the Mayor in Council, Kolkata Municipal Corporation which record that even",
after the orders of Court, the respondent no.6 had failed to deposit any sum on account of occupational charges.",
The KMC’s further case is that the petitioner no.1 alleges to be a tenant under the respondent no.6 and alleges to have been inducted sometime,
in the month of April, 2018. It is further alleged on behalf of the Corporation that the entire story of the petitioner having been lawfully inducted is pure",
myth, sham and illusory. The petitioner’s story of paying rent to the respondent no.6 has no authority of law. It is further alleged on behalf of the",
respondent Corporation that, the petitioner had been unlawfully and illegally running a guest house and hotel in its portion of the aforesaid premises.",
The respondent Corporation also contends that the respondent no.6 and the petitioner by collusion and conspiracy and connivance with each other,
have not only shown scant disregard for the orders of this Court but have unlawfully and illegally dealt with portion of the premises. After having,
failed to obtain any order in the several litigations the respondent no.6 had illegally and unauthorizedly inducted other third parties including the,
petitioner.,
In this background the KMC’s case is that it is to protect, preserve and prevent transferring the premises that the respondent Corporation had",
taken the impugned actions because of the unauthorized, illegal and fraudulent dealing by the private respondent no.6 and the petitioner. It is further",
submitted by the respondent Corporation that there is not an iota of a legal right or a semblance of a right which the petitioner can show to,
demonstrate that the petitioner was lawfully inducted into any portion of the said premises. The petitioners have entered into the premises through the,
backdoor and in collusion and in connivance with the private respondent no.6. without the consent of the respondent Corporation.,
The matter was heard on different dates and both the petitioner and the respondent Corporation were heard at length. The parties also chose to file,
their Notes of Submissions. It is important to mention that though from the order sheet it appears that initially (when the petition was filed) the,
respondent no.6 appeared at the hearings, that party was conspicuously absent during the final hearing of this petition.",
I have considered the rival submissions of both the parties and also perused the pleadings filed on their behalf. At the outset, I am of the view that",
what appears to be an innocent and naive grievance of the petitioner that the respondent Corporation has taken the law in its own hands and has,
illegally interfered with the lawful possession of the petitioner no.1 is far from reality and does not represent the true facts of the instant case. The,
salient facts clearly indicate that the premises is a valuable property situated in the heart of the Kolkata with a five storied building of which a,
substantial portion thereof is being used as a guest house and hotel by the petitioner no.1 company. Admittedly, the respondent Corporation is the sole",
and exclusive owner of the said premises. Admittedly, the private respondent no.6 who was the original lessee of the premises orchestrated a spate of",
litigation before the High Court in order to retain its unlawful and illegal possession after expiry of the lease but failed to comply with several orders,
passed by this Court.,
I also find that there was no consent by the Corporation to the alleged induction of the petitioner into any portion of the said premises.,
Notwithstanding the fact that the respondent no.6 could not demonstrate an iota of a legal right in respect of the said premises, the respondent no.6",
allegedly inducted the petitioners and different third parties into different portions of the premises. It is noteworthy that the petitioner contends that it,
was inducted in April, 2018 but however, the rent receipts annexed to the petition are all dated 9 August, 2018. Moreover, the term of the respondent",
no.6 stood expired in 2005 by efflux of time and it is an admitted position that no fresh lease was ever granted nor did the respondent no.6 pay the,
amount demanded by the Corporation or any amount notwithstanding orders of the High Court. The position is inescapable that there are outstanding,
dues of crores of rupees due and payable to the Corporation on account of occupational charges.,
I am of the view that having considered the facts and circumstances of the case there is not an iota of any legal right which the petitioner has been,
able to establish to show that its initial entry into any portion of the said premises was lawful, legal or authorized by law.",
Ordinarily, the right which a Writ Court seeks to enforce is a legal right which is judicially enforceable and of which there has been a breach by the",
actions of a public authority. Municipal authorities are democratic institutions exercising significant administrative powers and are custodians of,
valuable properties. It is their duty to protect such properties. No public property can be dissipated as a matter of largesse, charity, and donation or for",
private exploitation. I am of the view that, a section of citizens cannot prosper at the cost of other citizens and that the conduct of the petitioner is",
neither fair, honest nor reasonable.",
It is important to remind ourselves that exercise of the powers of the High Court under Article 226 is discretionary and though no limits have been,
placed on the discretion, these powers are exercised along recognized lines. The discretion vested in Courts is a judicial discretion and has to be",
exercised according to judicial principles. If the claim of the petitioner is found to be prima facie unjust the Court may decline to invoke its,
extraordinary powers.,
The petitioners allege to be in possession of a substantial portion of a valuable property in the heart of Kolkata without any authority from the,
owners. They are commercially exploiting the premises in question. It is fair to assume that they are earning lakhs of rupees if not crores. They are,
not paying a single penny as rent or occupational charges to the lawful owners i.e. the Corporation nor do they offer to make any payment. There is,
not a semblance of a legal right which they have been able to show that their initial induction in the property was lawful, proper or legitimate.",
The petitioner has complained that the impugned actions of the respondent Corporation are unfair. Fairness cannot be a one-way street. It must be,
recognized that fairness means fairness to both sides, not just one. The fairness required of the respondent Corporation cannot be carried to the extent",
of disabling them from protecting, preserving and enjoying their property and demanding what is lawfully due and owing to them. On the one hand, the",
petitioner and the respondent no.6 have not been able to demonstrate an iota of a legal right to continue to enjoy, occupy or exploit (far less,",
commercially exploit) any portion of the premises and on the other petitioners expect that the Corporation should be shackled hand and foot in the,
name of fairness.,
It has been laid down in M/s. Shiv Shankar Dal Mills and Others vs. State of Haryana and Others reported in (1980) 2 SCC 43 7at para 6 as,
follows:,
“Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court,",
exercising this flexible power, to pass such order as public interest dictates and equity projects:",
Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are",
accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon",
considerations as of public interest ……†(emphasis supplied),
The said principle has been repeatedly reiterated by different Courts all over the country.,
12 On the touchstone of public interest and in the interest of protection of public property, I have no sympathy for the petitioners. There is also a huge",
and staggering amount which continues to be outstanding and payable by the persons in occupation and enjoyment of the said premises which appears,
to be prima-facie irrecoverable insofar as the respondent Corporation is concerned. Even though, I find that there has been some delay on the part of",
the respondent Corporation in taking steps for protection of a public property and this ought to be castigated, there appears to be a refreshing change",
in the impugned actions of the Corporation which have been primarily inspired in public interest and in the peculiar facts and circumstances of the,
instant case. What actually motivates or de-motivates such public officers in positions of power is a different story left for discussion elsewhere. Even,
the norm of pay and stay which usually governs a landlord-tenant relationship is missing in this case. The petitioners admitted story is that they are,
enjoying a property belonging to the Corporation but purportedly paying rent to a third party interloper or intermeddler.,
13 For the foregoing reasons, I find that the petitioner has been unable to demonstrate any legal right which deserves the protection of a Writ Court.",
The foundation of the alleged right of the petitioner is prima facie unjust, vexatious and malafide and founded in fraud. There is no equity in favour of",
the petitioners in the facts and circumstances of the instant case. The aim of equity is to promote good faith and honesty and not to frustrate the,
legitimate rights of the respondent Corporation which aims to protect and preserve a public property. A Court of equity when exercising its equitable,
jurisdiction under Article 226 of the Constitution must so act to prevent perpetration of fraud and the Courts are obliged to do justice by promotion of,
good faith as far as it lies within their power. Equity defends the law from unscrupulous litigants and their crafty evasions and subtleties invented to,
evade the law. The actions of the petitioners are against social interest and public good and it is on that ground that I choose not to exercise any,
discretion in favour of the petitioner. Accordingly, I find no merit in the case of the petitioners.",
It was also urged on behalf of the petitioner that during the pendency of the proceedings the respondent Municipal authorities had on 28 March,
2019, issued a notice under Section 3(1) of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962 for eviction of the",
petitioners from the premises. Admittedly, there is no challenge to the aforesaid notice in these proceedings. The respondent Municipal authorities did",
not controvert the issuance of this notice. In such circumstances, nothing in this order will influence or bind the Appropriate Authority deciding the",
validity and outcome of the notice issued under the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962.",
In support of the contention of the petitioner that even a trespasser has to be evicted in accordance with law, the petitioner has relied on the",
following decisions: a) State of Haryana vs. Mahendra Pal AIR 2000 SC 3580, b)S tate of Uttar Pradesh and Ors. vs. Maharaja Dharmendra Prasad",
Singh (1989) 2 SCC 505, para 30-32 and c) R.V. Bhupal Prasad vs. State of Andhra Pradesh (1995) 5 SCC 698 at para 13. As a proposition of law, I",
am in full agreement with the ratio laid down in the aforesaid decisions. It is true that it is a well enshrined principle that even a trespasser has to be,
evicted in accordance with law. Equally well settled is the doctrine that even the Government is not permitted to resume possession otherwise than in,
accordance with law. However, as discussed hereinabove, in the facts and circumstances of the instant case, where the petitioners have been unable",
to show a semblance of a legal right to justify their initial entry into any portion of the premises, the factum that valuable public property is sought to be",
dissipated and or dealt with without the consent of the Municipal authorities who are admittedly the lawful owners, the fact that crores of rupees are",
outstanding in respect of outstanding occupational charges and rental arrears, I am of the view that all the quoted decisions are inapposite on facts. It",
is also now an admitted possession, that the respondent Municipal authorities have taken a proceeding in accordance with law for eviction of the",
petitioners. The petitioners can agitate their grievances before the other forum who is apparently equipped to deal with errant and illegal occupants.,
For the foregoing reasons, the writ petition is dismissed with costs assessed at Rs.10,00,000/-(Rs. ten lacs) payable to the respondent Corporation.",
 Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.",