Calcutta High Court (Appellete Side)
Noor Hossain Sk vs The State Of West Bengal & Others on 20 December, 2022
20.12.2022
Item No.15.
Court No.6.
AB
M.A.T. 1957 of 2022
With
IA CAN 1 of 2022
Noor Hossain Sk.
Vs
The State of West Bengal & Others
Mr. Ranjan Kali ....for the Appellant.
Mr. Ziaul Islam,
Mr. Abdus Salam .....for the State.
Mr. Raghunath Chakraborty,
Mr. Mahaboob Ahmed
.....for the Maheshtala Municipality.
Mr. Satyajit Talukdar .....for the KMDA.
By consent of the parties, the appeal and the
application are taken up for hearing together.
A Judgment and Order dated November 23,
2022, whereby the appellant's writ petition being WPA
No.15900 of 2022 was dismissed, is the subject matter
of challenge in this appeal.
The appellant/writ petitioner claims to have
been running a shop on plot no.511 under mouza -
Chakmir, police station - Maheshtala. In an earlier
round of litigation, the appellant approached a learned
Single Judge of this Court by filing WPA No.18954 of
2021, contending that his shop room was demolished
by Maheshtala Municipality without giving him any
prior notice or opportunity of hearing. One fine day,
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the Municipality people came and razed to the ground
the appellant's shop room by employing bulldozers.
The learned Judge noted that apprehending
demolition of the shop room, the writ petitioner had
approached the Chairperson, Board of Administrators,
Maheshtala Municipality, by a letter dated November
22, 2021. However, such representation did not
receive the attention of the Chairperson. The learned
Judge disposed of the writ petition by directing the
Competent Authority in the Maheshtala Municipality
to dispose of the writ petitioner's representation in
accordance with law upon hearing the writ petitioner
and all other interested parties and to pass a reasoned
order. The material portion of the said order reads as
follows:
"The said authority shall decide the entire issue
independently. A reasoned order shall be passed and
communicated to all concerned. The reasons behind such
demolition and the procedure followed shall be disclosed in
the order. If the allegations are not correct the findings
shall reflect the reasons."
Pursuant to the said order, an order dated June
28, 2022, was passed by the Chairman of the
Maheshtala Municipality after hearing the present
appellant. The said order reads as follows:
"Noor Hossain Sk., the writ petitioner was allowed
to establish his ownership over the subject land by way of
record. He submitted that his ownership over the subject
land at Dag no.511, Khatian no.3155 under Mouza
Chakmir is recorded in the Porcha.
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But from records as are collected from the BL & LRO
T.M. Block, South 24 Parganas it is transpired that the plot
no.511 is recorded in Khatian no.1, which is Govt Khatian,
vide his Memo no.488/BL & LRO/T.M.Behala/2021 dated
9.12.2021 the relevant Khatian and plot information on plot
no.511 & Khatian no.3155 shows that no record is
available. The writ petitioner prayed for a copy of the said
memo. His prayer is granted.
Therefore till his claim of ownership is
authenticated in the record of L & LR Department no action
can be taken in this regard".
Challenging the said order, the present appellant
approached the learned Single Judge in the present
round of litigation. By the judgment and order
impugned in this appeal, the learned Single Judge
dismissed the writ application. The material portion of
the said judgment and order reads as follows:
"It transpires that the land in question is recorded
in the government khatian and the government is the
owner of the land.
The petitioner prays for setting aside the order
passed by the Chairman of the Maheshtala Municipality
refusing his prayer for grant of compensation.
Records have been produced before this Court by
way of report filed by the Municipality and the Block Land
and Land Officer, Thakurpukur Block wherefrom it appears
that the land in question is recorded in favour of the
government.
The payment of fees and taxes and having a license
to continue business does not give any right to the
petitioner to occupy the vested land of the government and
run the shop room.
In the event the petitioner is aggrieved by the act of
the Municipality in demolishing his shop room and seeks
compensation, it will be open for the petitioner to approach
the appropriate forum for relief.
The impugned order is not liable to be interfered
with."
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Being aggrieved, the writ petitioner is before us
by way of this appeal.
We have heard learned Counsel for the parties at
length. The Chairman of the Municipality has recorded
in his order that the appellant herein could not
produce any document in support of his claim of
ownership of the shop/land in question. The learned
Single Judge refused to interfere with the order since
the Municipality cannot decide questions of title.
However, the order of the learned Single Judge passed
in the earlier round of litigation had directed the
Competent Authority in Maheshtala Municipality to
pass a reasoned order disclosing the reasons for
demolishing the structure in question and the
procedure that was followed. This part of the order of
the learned Single Judge passed in WPA No.18954 of
2021 has not been complied with by the Chairperson
of the Municipality. There was no appeal from the said
order which, therefore, attained finality. The
Chairperson was obliged to act strictly in terms of the
order, which he has not done.
Accordingly, we set aside the order of the
Chairperson of the Municipality passed on June 28,
2022, since the same is not in conformity with the
learned Single Judge's order dated February 24, 2022,
passed in WPA No.18954 of 2021 and remand the
matter to the Chairperson of the Municipality for
passing a fresh reasoned order keeping in mind the
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direction of the learned Single Judge in the order
dated February 24, 2022. The Chairperson of the
Municipality shall pass a reasoned order within four
weeks from the date of communication of this order to
him. Such order will be communicated to the appellant
within one week from the date of the order. However,
we make it clear that this order will not be construed
as directing the Chairperson of the Municipality to
decide any question of title, which, indeed, the
Municipality cannot do.
Consequently, the order under appeal is also set
aside. It will be open to the appellant to approach the
appropriate forum with his claim for compensation, in
accordance with law. If any such forum is approached
by the appellant with an appropriate application, the
same shall be decided in accordance with law without
being influenced by any observation in this order.
Since we have not called for affidavits, the
allegations in the stay application are deemed not to
be admitted by the respondents.
M.A.T. No.1957 of 2022 is, accordingly, disposed
of along with IA CAN 1 of 2022.
Urgent photostat certified copy of this order, if
applied for, be supplied expeditiously after compliance
with all the necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
