Hotel Al-Sana Pvt. Ltd. & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 551 Cal

    94
27.01.2021
    rrc

                       IN THE HIGH COURT AT CALCUTTA
                      CONSTITUTIONAL WRIT JURISDICTION
                                 APPELLATE SIDE

                               WPA 11169 of 2020

                          Hotel Al-Sana Pvt. Ltd. & Ors.
                                        Vs.
                         The State of West Bengal & Ors.



                 Mr. Suranit Nath Mitra, Senior Advocate
                 Mr Kallol Basu, Advocate
                 Mr. Nilanjan Pal, Advocate
                 Mr. Samik Sarkar, Advocate
                                            .....For the petitioners

                 Mr. Partha Pratim Roy, Advocate
                 Mr. Ayan Banerjee, Advocate
                 Mr. Suman Banerjee, Advocate
                                          ....For the State

                 Mr. Achintya Kumar Banerjee, Advocate
                 Ms. Manisha Nath, Advocate
                 Ms. Indumati Banerjee, Advocate
                                          .....For the KMC


                 The subject matter of challenge in this writ petition is

             the show-cause notice dated October 9, 2020 issued by

             the respondent no. 5, the First Land Acquisition Collector,

Kolkata (hereinafter referred to as 'the impugned show-

cause notice'), under Section 3 of the West Bengal Public

Land (Eviction of Unauthorised Occupants) Act, 1962

(hereinafter referred to as 'the Act of 1962') to the

occupiers of various properties mentioned therein. The

petitioners in this writ petition are in occupation of five

suites, namely, 45B, 45F, 46, 49B and 49F situate on the

second floor of premises no. 6A, S. N. Banerjee Road,

Kolkata - 700 013 (hereinafter referred to as "the said

suites") being some of the properties covered by the

impugned show-cause notice.

The facts under which the petitioner no. 1 Company

became an occupier of the said suites situate on the

second floor of the building at premises no. 6A, S. N.

Banerjee Road, Kolkata - 700013 are stated in paragraphs

1 to 7 of the writ petition. The supplementary affidavit

filed by the petitioners today is taken as record.

The principal ground of challenge advanced by the

learned Senior Counsel appearing for the petitioners to the

impugned show-cause notice is that the same is without

jurisdiction. It is contended that the impugned show-

cause notice has been issued by the respondent no. 5

under Section 3 of the Act of 1962 when the said Act has

no application with regard to the said suites occupied by

the petitioners. It was submitted that in the present case

the said suites are situated on the second floor of the

building at premises no. 6A, S.N. Banerjee Road involving

no land. Therefore, the provisions of the Act of 1962

empowering the respondent no. 1 Corporation to evict any

unauthorised person from its land cannot be made

applicable in this case. In support of such contention

learned Senior Counsel for the petitioners referred to the

Object of the Act of 1962, that is, 'An Act to provide for the

speedy eviction of unauthorised occupants from public

lands'. He further referred to sub-Section (7) of Section 2

the Act of 1962 where "public land" is defined as follows:-

"(7) "public land" means any land belonging to, or taken on lease by, the State Government, a local authority, a Government company or a corporation owned or controlled by the Central or the State Government and includes any land

requisitioned by, or on behalf of the State Government, but does not include a Government road or a highway within the meaning of the Bengal Highways Act, 1925, or any other law for the time being in force on the subject."

According to the petitioners, although sub-Section (2)

of Section 2 of the Act of 1962 defines "land" to include

building and other things attached to the earth or

permanently fastened to things attached to the earth, but

from a conjoint reading of sub-Sections (7) and (2) of

Section 2 of the Act of 1962, as well as the Object of

enactment of the Act it is evident that the provisions of the

Act of 1962 are applicable in respect of only any land

belonging to or taken on lease by the State Government, a

local authority, a Government company or a corporation

owned or controlled by the Central or State Government

and includes any land requisitioned by, or on behalf of the

State Government. Thus, it was emphasised that the

impugned show-cause notice, in so far as the same relates

to the petitioners' said suites situate on the second floor of

the building, at premises no. 6A, S.N. Banerjee Road is

without jurisdiction.

In order to buttress the point that the Act of 1962 is

applicable only in respect of land owned by the State

Government or corporation, petitioners relied on the

decision of the Supreme Court in the case of State of West

Bengal & Anr. Vs. Banalata Investment Ltd. & Anr.

reported in (2001) 4 SCC 700. Urging the ground that the

impugned show-cause is without jurisdiction, learned

Senior Counsel for the petitioners prayed for an ad-interim

order of stay of operation of the impugned show-cause

notice.

However, the learned counsel appearing for the

respondent Corporation strenuously argued that in view of

the fact that as per sub-Section (2) of Section 2 of the Act

of 1962 land includes buildings and other things attached

to the earth, the respondent no. 5 has rightly issued the

show-cause notice under Section 3 of the Act of 1962. In

support of such contention, the learned Counsel for the

respondent no. 1 Corporation relied on two unreported

single Bench decisions of this Court dated December 3,

2019 and October 21, 2020 passed in WP 21236 (W) of

2019 (Ashok Kumar Shaw & Ors. Vs. Kolkata Municipal

Corporation) and WP 2038 (W) of 2020 (Ashok Kumar

Shaw & Ors. Vs. First Land Acquisition Collector),

respectively. Petitioners also relied on an unreported

Division Bench decision dated January 9, 2020 passed in

FMA 82 of 2020 (MAT 1941 of 2018) Ashok Kumar Shaw &

Ors.-vs-Kolkata Municipal Corporation & Ors. In the said

cases of Ashok Kumar Shaw & Ors. (supra) two

coordinates Benches of this Court refused to entertain a

challenge to the eviction proceedings initiated the

respondent no. 1 herein against the respective writ

petitioners under the Act of 1962. By the said order dated

December 9, 2020 passed in FMA 82 of 2020, the Division

Bench upheld the judgment and order dated December 3,

2019 passed by a single Bench of this Court in WP 21250

(W) of 2019.

However, in his reply the learned Senior Counsel

appearing for the petitioners submitted that none of the

above unreported decisions cited by the respondent no. 1

Corporation have any application in the present case. It

was emphasized that the writ petitioners in the said WP

21236 (W) of 2019 and WP 2038 (W) of 2020 had

challenged the respective eviction proceedings initiated

against them by the respondent no. 5, the Land

Acquisition Collector on various grounds, other than the

ground that such proceedings were without jurisdiction

inasmuch as the Act of 1962 had no application.

I have considered the materials on record, as well as

the arguments advanced by the learned Counsel for the

petitioners as well as the respondent no. 1 Corporation,

respectively. From a reading of the judgments dated

December 2, 2019 and October 21, 2020 passed by the

respective coordinate Benches of this Court it is evident

that in the said cases the question of applicability of the

provisions of the Act of 1962 in respect of the premises in

question were not in issue. Even the Division Bench in the

said judgment dated January 9, 2020 they are not called

upon to decide if the eviction proceeding initiated by the

present respondent no. 5 in respect of the premises

involved in the said appeal was without jurisdiction on the

ground urged by the petitioners in the present case. In the

said decision, the Division Bench further held that a show-

cause notice can be challenged if the same is without

jurisdiction or utterly absurd.

As pointed out by the petitioners the object of the

enactment of the Act of 1962 was to provide for the speedy

eviction of unauthorised occupants from public lands.

Sub-Section (7) of Section 2 of the same Act also defines

the term "public land"to mean "any land belonging to, or

taken on lease by, the State Government, a local authority,

a Government company or a corporation owned or controlled

by the Central or the State Government and includes any

land requisitioned by, or on behalf of the State Government"

Further Section 4 of the Act of 1962 stipulates that if

the Collector (in case of city of Kolkata the respondent no.

5) is satisfied that the public land is in unauthorised

occupation he shall make an order of eviction directing all

persons in such unauthorised occupation to vacate the

land and deliver the possession thereof to the owner.

As mentioned earlier, in the present case, the

respondent no. 5 has issued the impugned show-cause

notice under Section 3 of the Act of 1962 even against the

petitioners' in respect of their occupation of the said suites

situate on the second floor of the building at premises no.

6A, S. N. Banerjee Road, Kolkata - 700 013 without

involvement of any land.

Considering the above, I am of the prima facie view

that the Act of 1962 can be invoked by the respondent

Corporation only to recover possession of its land

wrongfully occupied by any person. The decision of the

Supreme Court in the case of Banalata Investment Ltd.

(supra) cited by the petitioners, lends support to the prima

facie views of this Court in this case.

For the reasons as aforesaid, I find that the

petitioners have made out a prima facie case to obtain an

interim order in support of their prayer that the impugned

show-cause is without jurisdiction. Accordingly, there

shall be an order of injunction restraining the respondents

and each of them whether by themselves or their servants

or agents or otherwise howsoever from giving any effect to

or acting in terms of the impugned show-cause notice

dated October 09, 2020 issued by the respondent no. 5, in

so far as the same relates to the five suites of petitioner no.

1, situate on the second floor of the building at premises

no. 6A, S.N. Banerjee Road, Kolkata - 700013 for a period

of eight weeks from date or until further orders whichever

is earlier.

Let the respondents file their affidavit-in-opposition

within three weeks from date; reply thereto, if any, be filed

within two weeks thereafter.

The writ petition will appear under the heading

"Motion Adjourned" six weeks hence.

(Ashis Kumar Chakraborty, J.)