Harish Tandon JUDGMENT
Harish Tandon, J.
1. The present writ petition is filed for a direction upon the corporation authorities to take steps for demolition of the illegal construction and stoppage of the illegal running of the private market on the lands of the petitioner comprised in R.S. Plot No. 126/165 and 124/167 of Mouza-Barakhola, G.L. No. 21, P.S. Purba Jadavpur, Dist. South 24 Parganas, measuring about 100 kathas.
2. The facts pleaded in the writ petition are that one Gangadas Paul was the recorded owner of 43.76 acres, more or less, of various classes of land situated at Mouza-Barakhola, P.S. Purba Jadavpur and in other mouzas in the District of South 24 Parganas. At the time of revisional settlement, those lands have been recorded in the name of the said owner and were classified as sali, jungle, vita, khal bill etc. The said Gangadas Paul died in the year 1958 leaving behind him surviving one son and three daughters namely Debabrata Sen, Sulekha Paul (Dey), Illa Basu Chowdhury, Reba Rani Ghosh.
3. A partition suit was filed being Title Suit No. 38 of 1962 in the Court of 3rd Judge at Alipore, which was decreed on compromise on 14th March, 1966. A Big Raiyat Case was started being BR Case No. 5 of 1967 and the notice was served upon the aforesaid heirs. In the meantime, an agreement for sale was entered into between the aforesaid heirs and West Bengal Employees (Food and Supply) Co-operative Housing Society Limited on 13th March, 1968 for sale of 85 bighas of land comprised in Mouza Barakhola.
4. The Big Raiyat case was taken up by the revenue officer and by an order dated 16th September, 1961, all the lands belonging to the deceased owner was vested with the State as the intermediaries did not exercise their choice of retention. After the vesting order was passed, the State Government settled the land with the said Co-operative Housing Society Limited. It is stated that though the order of vesting was passed but no notice under Section 10(2) of the West Bengal Estate Acquisition Act, 1953 was served for taking possession of the land from the owners. In the meantime, all the four heirs executed an agreement for sale on 7th September, 1989 in favour of the petitioner No. 1 herein for sale of aforesaid 85 bighas of land and received the earnest money of Rs. 50,000/-. Since, the land was settled by the State Government in favour of the said Cooperative Housing Society Limited treating the aforesaid land as vested land, the order of vesting passed by the revenue officer was challenged in writ petition being Civil Order No. 11737(W) of 1991 before this Court. The Co-operative Housing Society Limited was subsequently added as respondent in the said writ petition. By a judgment and order dated 24th September, 1992 the Single Bench allowed the said writ petition as a consequence whereof the order of vesting passed by the revenue officer was set aside. The Single Bench however granted leave to the said heirs to file 'B' Form indicating their choice of retention of land under the provisions of the West Bengal Estate Acquisition Act, 1953 within a period of 6 weeks from date. The said form was filed in terms of the liberty granted in the said order indicating the choice of retention of land to the permissible extent.
5. In the meantime, the Co-operative Housing Society Limited challenged the order of the Single Bench in an Intra Court Appeal being FMAT 3357 of 1992 and simultaneously the State of West Bengal also challenged the self same order by filing FMA 3391 of 1992 before the Division Bench. Both the appeals were taken up together and by a common judgment were dismissed. The order of the Division Bench was further challenged both by the Co-operative Housing Society Limited as well as the State of West Bengal before the Supreme Court in the Special Leave Petitions, which were registered as C.A. 12509 of 1996 and C.A. 442 of 1998 respectively. The Special Leave Petitions were admitted and were assigned regular numbers. Amidst the pendency of the appeal before the Supreme Court, the revenue officer disposed of the 'B' Form submitted by the aforesaid heirs and by an order dated 2nd August, 1994 allowed the retention of 105 bighas, 12.6 kathas of various classes of land comprised in the said mouza by the said heirs.
6. The appeal filed against the Division Bench order came up for hearing before the Supreme Court and by a judgment and order dated 16th April, 2003 were dismissed. Since the settlement of lands in favour of the Co-operative Housing Society Limited by the State of West Bengal could not survive, a suit for specific performance of contract was filed by the Co-operative Society in the Alipore Court, which was registered as Title Suit No. 95 of 2003. The petitioner No. 1 by two separate registered deeds of sale dated 7th June, 2004 and 16th June, 2004, purchased 50% share in 105 bighas, 12.6 kathas of lands from two daughters namely Sulekha Paul (Dey), Illa Basu Chowdhury. The other owner namely Debabrata Sen also executed a Deed of Sale dated 17th June, 2004 in favour of the petitioner No. 2 selling, transferring and conveying his 1/4th share in respect of the aforesaid land.
7. Subsequently, an application was filed before this Court for transfer of the suit for specific performance of sale filed by the Co-operative Societies Limited to the High Court which was eventually allowed and the same was registered as E.O.S. No. 3 of 2006. The said suit was dismissed on 19th June, 2008 and an Intra Court Appeal (APOT 245 of 2008) was also dismissed. The Special Leave Petition challenging the said judgment and order was further dismissed by the Supreme Court. In the meantime, the third daughter namely Rebarani Ghosh died and her heirs and legal representatives sold their 1/4th share in the aforesaid land to the petitioner No. 3 by a registered Deed of Sale dated 27th July, 2007. The petitioner Nos. 1 and 2 subsequently sold 20.184 acres of land comprised in RS Plot No. 135, 136, 137, 126/165, 124/167, 127/169, 128/170 and 129/171 to West Bengal Housing Board. After the aforesaid sale the record of right was altered and/or rectified and recorded the name of Housing Board as well as the petitioners against the different plots of land. The petitioners claim that they have become the owner by dint of purchase and the subject matter of dispute pertains to the RS Plot No. 126/165 and 124/167 at Mouza Barakhola, P.S. Purba Jadavpur, District - South 24 Parganas.
8. Though it has not clearly and explicitly stated in the writ petition which appears to be too cryptic yet it appears from the submissions advanced at the bar that a suit being Title Suit No. 43 of 1956 was filed in respect of the various plots of land for partition. Initially, the said Gangadas Paul, the said deceased was not a party to the suit but was subsequently impleaded therein. No substitution application was taken out after his death and the moment the said fact was disclosed before the Trial Court, an order was passed for recording abatement against the said deceased. An application for temporary injunction was filed in the said suit restraining the parties therein from alienating, transferring and/or encumbering or creating third party interest in respect of the scheduled properties which was disposed of directing the parties to maintain status quo with respect to the suit properties and also from alienating, transferring or creating third party interest as well as changing the nature and character thereof. Alleging that the order of injunction is being violated, an application was filed for police help to implement the said order. However, the said order was challenged before the higher forum and ultimately carried to the Supreme Court. The Apex Court by its judgment dated 18th September, 2015 allowed the same holding that the temporary injunction is not binding on the Housing Board and therefore the question of implementation thereof through police help does not arise.
9. Now, it is the turn of the petitioner to approach this Court by filing the instant writ petition as the market is established by making illegal constructions at the aforesaid plots in gross violation of the provisions of the Kolkata Municipal Corporation Act, 1980. It is, therefore alleged that the comprehensive representation made with the Municipal Commissioner to take immediate steps is not attended and for such inaction the direction is sought in the instant writ petition upon the said authority as stated earlier.
10. It is submitted on behalf of the petitioner that Section 392 of the Kolkata Municipal Corporation Act, 1980 prohibits any person to make construction without obtaining previous sanction from the Municipal Commissioner. Since those constructions are apparently in violation to the said provision, the statutory duties cast upon the said authority to take immediate action under Section 400 of the said Act. It is further submitted that Section 428 of the said Act postulates that no place can be used as market unless a requisite license is given by the Municipal Commissioner under Section 436 of the said Act. It is thus submitted that the Municipal Commissioner cannot sit idle and keep the representation in abeyance when the aforesaid violations of the several provisions of the Act has been informed and surfaced before him.
11. On the other hand, the Corporation says that previously the aforesaid plots of land were under the Jadavpur Municipality which was subsequently included in the Kolkata Municipal Corporation with effect from 04.01.1984. It is vehemently submitted that from local enquiry it transpires that the said market was established and constructed much before coming into force of Kolkata Municipal Corporation Act, 1980 and therefore it is not known whether any permission was granted by the erstwhile Jadavpur Municipality or not. It is succinctly submitted that the certificate of enlistment are issued to the various persons for business and trade and therefore it is not necessary to proceed with the said representation filed by the petitioners. The learned Advocate for the Corporation further took a plea of locus standi of the petitioners that they have no right, title and interest in respect of the said land.
12. There has been a several round of litigations between the various persons relating to the plots of land originally belonged to Gangadas Paul, since deceased. Admittedly after coming in force of the West Bengal Estate Acquisition Act, 1953 the original owner did not file an option in prescribed form exercising the right of the retention which led to the initiation of a Big Raiyat case which was ultimately disposed of directing the entire plots of land to be vested with the State of West Bengal. The said order was subsequently set aside by this Court in a writ petition, which was affirmed up to the stage of the Supreme Court. In terms of the liberty granted to the heirs of the original owners, 'B' Form was filed and a revenue officer disposed of the same directing the retention of certain lands and vesting of others.
13. Admittedly, the petitioners purchased the part of the lands and further executed a sale deed in favour of the Housing Board. This Court therefore does not find any substance in the objection of the Kolkata Municipal Corporation on the locus standi. The Corporation is not a competent authority to decide the title of the parties, which is exclusively within the domain of the Civil Court. The right of the original owner namely Gangadas Paul has been duly recognized as a leave was granted to the heirs to exercise an option of retention of the land which was decided by the revenue officer. This Court feels that the said aspect need not be gone into because the Corporation has raised such issue in the Affidavit-in-Opposition as the question of title is within the exclusive jurisdiction of the Civil Court.
14. The subject matter of dispute discernable from the writ petition pertains to firstly inaction on the part of the Municipal Commissioner to decide the representation filed by the petitioners, and secondly, whether the market established by the market committee and the constructions made thereupon is strictly inconformity with the provisions of the Kolkata Municipal Corporation Act, 1980.
15. Chapter XXIV of the said Act contains the exhaustive provisions relating to markets and the slaughter houses. The said chapter imbibed within itself the municipal markets and the private markets. Section 428 of the Act clearly provides that no place other than a municipal market shall be used as a market place unless such place has been licensed as a market by the Municipal Commissioner under Section 436 of the Act. The municipal licenses are dealt with under Chapter XXV. Section 435 thereof puts an embargo on any person to use any premises for any of the non residential purposes mentioned in Schedule V without the municipal license granted by the Municipal Commissioner. Though Article 19(1)(g) of the Constitution of India guarantees all citizens the right to practice any profession or carry on any occupation, trade or business but the same is not an absolute right which would be evident from Article 19(6) of the Constitution.
16. Sections 437 and 438 create an absolute prohibition against the establishment and/or opening of the market for public without the valid license. It is therefore manifest from the aforesaid provisions that the Municipal Commissioner has to form a conclusive opinion with precision and information whether such market is established in conformity with the aforesaid provisions or not.
17. A plea has been taken by the Corporation that the said market was established prior to the inclusion of the Jadavpur Municipality within the Kolkata Municipal Corporation. No records pertaining to any permission granted by the Jadavpur Municipality to establish and run the market for public nor any document relating to sanction being granted for construction of the shops or the stalls are produced. If the stand of the Corporation is considered to be true and correct for the sake of argument, yet it does not absolve the Corporation from arriving at the definite opinion on the various provisions of the Bengal Municipal Act, 1932. Chapter 17 of the aforesaid Act contains somewhat similar provisions to Chapter XXIV and XXV of the Kolkata Municipal Corporation Act. Identical prohibition is provided in the aforesaid Act and therefore the illegalities cannot get cured and/or validated as the said municipality is subsequently included in the Corporation. The provisions contained under Section 626 of the Kolkata Municipal Corporation Act can be seen in this regard which is reproduced as under:-
"626. Effect of inclusion or exclusion:-(1) Upon the inclusion of any area in the neighbourhood of Kolkata within the limits of Kolkata under section 625,--(a) the Bengal Municipal Act, 1932, or the West Bengal Zilla Parishads Act, 1963, or the West Bengal Panchayat Act, 1973, or the West Bengal Townships (Extension of Civic Amenities) Act, 1975, as the case may be, if in force in such area, shall be deemed to be repealed therein; and (b) except as the State Government may by notification, otherwise direct, any rules, regulations or orders made or any directions issued or any powers conferred under the provisions of this Act, which are in force at the date of such inclusion, shall apply to such area in supersession of the corresponding rules, regulations, or orders made or directions issued or powers conferred under the West Bengal Municipal Act, 1932 (West Ben. Act XV of 1932), or the West Bengal Zilla Parishads Act, 1963 (West Ben. Act XXXV of 1963), or the West Bengal Panchayat Act, 1973 (West Ben. Act XLI of 1973), or the West Bengal Townships (Extension of Civic Amenities) Act, 1975 (West Ben. Act XLII of 1975), as the case may be.
(2) Upon the exclusion of any area from the limits of Kolkata under section 625, this Act or any rules, regulations or orders made or any directions issued or any powers conferred under this Act shall cease to apply to such area.
(3) The State Government may issue such orders as it may consider necessary to give effect to the inclusion or the exclusion of any area within or from the limits of Kolkata, as the case may be, under section 625 or to any matter incidental or ancillary to such inclusion or exclusion."
18. The said provision indicates that the moment any area is included within the periphery of the Kolkata Municipal Corporation Act, which was earlier within the limits of the municipality, the Municipal Act governing shall be admitted to be repealed and the provisions of the Acts, Rules and Regulations framed under the Kolkata Municipal Act, 1980 shall apply except the State Government by notification may otherwise direct.
19. It is, therefore, apparent from the aforesaid provisions that the illegal acts under the repealed Act does not automatically get validated and/or receive legal sanction as the said Act stood repealed by virtue of the inclusion of the area within the territorial limits of the Kolkata Municipal Act, 1980. The Municipal Commissioner is required to consider those aspects, more particularly the notification issued and published by the State Government at the time of inclusion of the Jadavpur area within the territorial circumference of the Kolkata Municipal Corporation.
20. Neither in the writ petition nor in the opposition those facts and the documents relating thereto have been disclosed to which this Court feels and it would not be proper to delve into it.
21. In views of the above, the Municipal Commissioner is directed to consider the aforesaid representation in the light of the observance recorded herein above and shall decide the same after affording an opportunity of hearing to the petitioner and all the interested persons, by recording proper reasons within 4 weeks from the date of communication of this order.
22. The writ petition is thus disposed of.
23. However, there shall be no order as to costs.
© Manupatra Information Solutions Pvt. Ltd.