Uttam Kumar Das And Others vs The State Of West Bengal And Others
2022 Latest Caselaw 36 Cal

                       In the High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                           W.P.A. No. 7956 of 2020

                        Uttam Kumar Das and others
                                     Vs.
                     The State of West Bengal and others



     For the petitioners             :     Mr. Subir Sanyal,
                                           Mr. Sayantan Hazra,
                                           Mr. Sagnik Roy Chowdhury

     For the State                   :     Ms. Sutapa Sanyal,
                                           Ms. Susnita Saha

     For the respondent

     nos.3 and 9                     :     Mr. Saikat Banerjee,
                                           Ms. Juin Dutta Chakraborty


     Hearing concluded on            :     21.12.2021

     Judgment on                     :     06.01.2022



     Sabyasachi Bhattacharyya, J:-

1. The petitioners claim to be licensees who have been carrying on their

respective businesses in their allotted stalls in the Malda District

Court compound. The last of such licences admittedly expired on

March 31, 2011. From March 24, 2011 to March 26, 2013, the

petitioners apparently submitted various representations to

respondent nos. 4 and 5 to renew their licences.

2. On July 15, 2014, respondent no.4 issued a notification vide Memo

No.858(B)/N directing all the stall-owners to submit their particulars

as proof of valid occupation of the stalls.

3. On September 10, 2018, police personnel were allegedly deployed in

the Malda Court compound and asked the petitioners to vacate their

stalls, on which the petitioners allegedly submitted further

representations to the respondent nos. 4 and 5. It is relevant to

mention that respondent no.4 in the writ petition is the Office of the

District Judge at Malda and respondent no.5, the District Magistrate

and Collector at Malda. The writ petition alleges that on February 26,

2020, the Executive Engineer, Malda Division, Public Works

Department (PWD), being respondent no.8, with his men and agents

allegedly blocked the front area of the stalls with tin barricades.

4. On February 29, 2020, the petitioners submitted further

representations, but to no avail.

5. The petitioners contend that they have been carrying on business

relating to DTP, Cyber Café, Photocopy, food, tea, snacks, etc., which

catered to the litigants and practitioners in the Malda Court. The

petitioners claim to have been paying rent to the authorities regularly

at all material times by virtue of challans. Copies of the petitioners'

licenses and challans have been annexed respectively as Annexures

P-1 and P-2 collectively to the writ petition. The petitioners carried on

paying electric bills regularly in respect of their connections to the

said stalls, also at all material times.

6. It is alleged that, by dint of barricading the stalls by tin barriers

during the imposition of lock down throughout the country due to the

pandemic, the petitioners have virtually been evicted from the said

stalls without due process of law. The provisions of Section 3 of the

Public Land (Eviction of Unauthorised Occupants) Act, 1962

(hereinafter referred to as 'the 1962 Act') were given a go-by while so

ousting the petitioners.

7. The present writ petition has been filed against such allegedly

unlawful actions of the administration.

8. Respondent no.3, the Registrar (Inspection-II) of the High Court at

Calcutta, and respondent no.9, the High Court at Calcutta (through

the Registrar General) have filed a joint affidavit-in-opposition to the

writ petition. The High Court administration has taken the stand,

inter alia, that the alleged action was not an exercise of permanent

eviction but an exercise of temporary fencing of the land in question,

where Court rooms are intended to be constructed under the National

Court Management Systems (NCMS) Norms and is, thus, credible and

valid.

9. It is further contended that the petitioners' licenses were admittedly

not renewed beyond the year 2011, which rendered the petitioners

illegal occupants on the date of the fencing. As such, it is argued that

the petitioners have no right, title and/or interest in the stalls-in-

question and, therefore, lack the locus standi to file the writ petition.

10. Learned counsel for the High Court Administration cites Shiv Dass vs.

Union of India and others, reported at (2007) 9 SCC 274 and New

Delhi Municipal Council Vs. Pan Singh and others, reported at (2007) 9

SCC 278 in support of the proposition that belated writ petitions

ought not to be entertained in view of the laches on the part of the

petitioners. In the present case, the petitioners have failed to explain

the inordinate delay in presenting the writ petition after the cause of

action arose, since sufficient notice has been given to the petitioners

regarding vacating the stalls since long back.

11. Learned counsel for the respondent no.3 and 9 next cites State of

Jammu and Kashmir and others vs. Ajay Dogra, reported at (2011) 14

SCC 243 to advance the proposition that relief cannot be granted in

an application under Article 226 of the Constitution of India in the

absence of specific pleadings on such score. Learned counsel further

cites Union of India and others vs. Jai Prakash Singh and another,

reported at (2007) 10 SCC 712, in support of the proposition that the

High Court cannot travel beyond the pleadings and grant relief in

exercise of the power under Article 226 of the Constitution of India.

Learned counsel further places reliance on V.K. Majotra Vs. Union of

India, reported at (2003) 8 SCC 40, wherein it was held that while

deciding an application under Article 226 of the Constitution, only the

issues-in-question are to be construed and the disposal of the case on

a point not raised by the parties and omission to decide the question

raised is improper.

12. On the basis of the said reports, learned counsel for respondent nos.

3 and 9 argues that the petitioners have failed to aver and/or plead

the violation of Section 3 of the 1962 Act within the four corners of

the writ petition. As such, this Court ought not to accept the

arguments advanced by learned counsel for the petitioner at the

hearing stage for the first time on such aspect of the matter.

13. Respondent no.4 that is the Office of the District Judge at Malda has

also filed an independent Affidavit-in-opposition to the writ petition,

uniting with respondent nos. 3 and 9 in its contentions.

14. The premise of the respondents' arguments is that the barricading-in-

question was done due to non-availability of adequate space in the

Malda Court complex for construction of a composite court building

in consonance with the NCMS Norms and Guidelines, which was

approved by the Hon'ble the Chief Justice of India on May 2, 2012. It

is argued that, against a sanctioned strength of 18 judicial officers in

the judgeship of Malda, as well as the requirement of a child-friendly

court and a family court, merely 13 court rooms are available in the

court precincts. An area of about 31,200 sq. ft. was illegally occupied

by unauthorised occupants, which also created obstruction to the

professional work of the members of the Malda Bar Association. The

said Association, vide its letter dated September 27, 2018 written by

its Secretary, requested for eviction/removal of the unauthorised

shops located in the Malda Court compound.

15. Vide Memo No. 649/G dated January 15, 2019, the District Judge,

Malda informed the High Court Administration about non-availability

of space in the Malda Court complex. The Judge-in-Charge of Malda

was pleased, by a communication dated April 30, 2019, to direct the

Registry to take up the issue with the Government Authorities. In

pursuance thereof, vide Memo No. 1773-G dated May 7, 2019, the

Secretary, Judicial Department was requested to move the

Government for taking necessary steps in the matter. The Secretary,

Judicial Department, vide Memo No.151-JD/X/1J-03/2019 dated

May 28, 2019, requested the Principal Secretary, Department of

Home and Hill Affairs, Government of West Bengal to take necessary

action on an urgent basis for the removal of such occupants.

16. By Memo No. 7482/G dated July 2, 2019, the then District Judge,

Malda informed the Registry of the High Court that no steps had been

taken despite the Home Secretary having been requested by the

Judicial Secretary for removal of the unauthorised occupants.

17. Again, vide Memo No. 3723-G dated August 21, 2019, the Registrar

(Inspection-II), allegedly under direction, requested the Judicial

Secretary to expedite the procedure of eviction against illegal

occupants.

18. Vide Memo No.232-JD/X/1 J - 03/19 dated August 30, 2019, the

Joint Secretary, Judicial Department, again requested the Home

Secretary to take necessary action on the issue on an urgent basis.

19. Vide Memo No.11142-G dated September 24, 2019, the District

Judge, Malda informed the Registry of the High Court about further

developments and suggested that, subject to approval by this Court,

the land within the Malda premises, occupied in an unauthorised

manner by shopkeepers, temporary vendors, hawkers and law clerks,

be guarded and protected by temporary fencing till the occupants are

permanently removed.

20. The said Memo was placed before the Hon'ble Judge-in-Charge (Zonal

Judge) for the District of Malda by the Registrar (Inspection-II) of this

Court by a Lay Note dated September 30, 2019, upon which the

Hon'ble Zonal Judge approved such proposal on October 1, 2019.

The Registrar (Inspection-II) communicated the said direction to the

District Judge at Malda vide Memo No. 4528-G dated October 25,

2019. Lastly, vide Memo No. 12554/G dated November 4, 2019, the

District Judge at Malda conveyed the direction of this Court to the

Executive Engineer, PWD (Civil), Malda Division, that is, respondent

no.8 and requested the said authority to set up temporary fencing to

guard the land-in-question. The Executive Engineer, PWD (Civil),

Malda Division erected the temporary fencing in dispute on November

4, 2019.

21. A perusal of the aforesaid series of communications brings to light

that the erection of barricades at the behest of the Executive Engineer

was done on the basis of instructions of this Court to construct new

court buildings within the Malda District Court compound under the

NCMS Norms, which is under the overall control of the Hon'ble Chief

Justice of India.

22. However, there was a patent communication gap among the

respondent-authorities on such score.

23. Prior to September 24, 2019, the communication shuttled around the

issue of urgent removal of the unauthorised occupants at the Malda

District Court premises. The communications from all concerned

revolved around the said issue alone.

24. However, from the Memo No.11142/G dated September 24, 2019,

that is, the communication by the then District Judge at Malda to the

Registrar (Inspection-II), High Court, Appellate Side, the

communications took on a different complexion. For the first time, the

discussion took the shape of an endeavour to erect temporary fencing

till the allegedly illegal occupants are permanently removed and

evicted from the Malda Court premises.

25. The subsequent communications all revolved around the said

proposal, culminating in the ultimate erection of the barricade by tin

fencing on November 4, 2019.

26. It is an admitted position that the licenses in favour of the petitioners

expired last on March 31, 2011. The petitioners failed to produce any

licence and/or rent challan subsequent to March 31, 2011 to

establish the payment of any rent and/or renewal of licence after the

said date.

27. Although, admittedly, the petitioners were virtually ousted by erection

of the fencing only on November 4, 2019, the physical occupation of

the petitioners at that juncture was ex facie unauthorised.

28. Section 3 of the 1962 Act categorically provides the procedure for

initiating eviction proceedings against unauthorised occupants of

public lands. The subsequent sections of the said Act provide the

modalities of such procedure further. It is clear from the language of

Section 3 of 1962 Act that, even to evict unauthorised occupants, the

due process of law, as stipulated in the 1962 Act, has to be complied

with to the letter. However, in the present case, the petitioners were

ousted from their possession in respect of the stalls-in-question

without taking recourse to due process of law by the oblique method

of erecting 'temporary' tin barricades surrounding the said stalls to

preclude the petitioners' egress and ingress in respect of the said

stalls.

29. The allegation of laches on the part of the and/or delay in filing the

writ petition is unacceptable, since the petitioners have, all along,

been presenting their representations to the appropriate forums and

running from pillar to post for redressal of their grievance. The writ

petition was filed in September, 2020 by the present petitioners, who

are allegedly some of the stall-owners.

30. Hence, the time-lapse between the filing of the writ petition, and the

continuance of the cause of action was sufficiently proximate not to

reject the writ petition at the threshold on the ground of delay.

31. The stand of the High Court Administration, that all the alleged 300

persons whose livelihood was affected by the eviction have not

preferred the writ petition, is neither here nor there.

32. Since no specific action had been taken prior to the erection of the

barricades-in-question, there arose no occasion for the petitioners to

approach this court earlier. The mere number of the writ petitioners

cannot justify the illegal manner in which the petitioners were evicted

by dint of erection of fencing without taking resort to due process of

law and without any notice being served within the contemplation of

Section 3 of the 1962 Act.

33. Although the High Court was fully justified in asking the appropriate

authorities to take immediate steps for removal of unauthorised

occupants in order to give shape to the NCMS Scheme which was

within the periphery of legality, from September 24, 2019, the

endeavour of the authorities, that is, the Malda District Court

Administration in tandem with the State Administration, to erect

fencing for preventing the petitioners from having access to their

stalls and in the process, standing ousted therefrom, was entirely de

hors the law and divorced from the directions of this Court to follow

the NCMS Norms. In the name of complying with the NCMS

Guidelines, the District Judiciary and the State Administration

resorted to patent illegality ousting the petitioners for all practical

purposes from the stalls which were previously in their occupation.

34. Hence, the manner in which such fencing was erected cannot but be

seriously deprecated. The State Administration could very well have

adhered to the provisions of the 1962 Act in its effort to urgently evict

the petitioners from their unauthorised occupation of the stalls.

However, such course of action was not resorted to in the name of

compliance of the NCMS directions.

35. It may be noted here that the writ petition, supported by affidavit of

the petitioners, is not supposed to contain legal arguments or

propositions of law. As such, the absence of any specific pleading in

the petition as regards violation of the provisions of the 1962 Act

cannot be a justification to dismiss the writ petition at the outset. In

any event, the powers of the High Court under Article 226 of the

Constitution of India pertain to judicial review, which is embedded in

the basic fabric of the Constitution of India and has to be exercised

for the ends of justice and equity to prevent the violation of

fundamental rights and gross illegalities.

36. In the present case, the right of the petitioners to carry on business

under Article 19 of the Constitution of India was squarely violated by

the impugned action.

37. However, the predicament which arises before this Court is in respect

of the appropriate relief which ought to be granted to the petitioners,

who were illegally evicted. The fact that the petitioners were in

patently unauthorised occupation on the date of erection of the

fencing prevents the petitioners from asserting any legal right in

respect of the stalls-in-question. On the other hand, the unlawful

and inequitable manner in which the petitioners were ousted cannot

stand the scrutiny of judicial review as well. The present scenario at

the locale, as it appears from the respective arguments of the parties

and the materials-on-record, is that the sheds housing the stalls have

been demolished and plans are underway to comply with the NCMS

norms for constructing a new composite building within the Malda

Court premises at the site where the stalls used to be located.

38. Directing restoration of possession to the petitioners would lose out in

the balance of convenience and inconvenience, since the petitioners,

in the first place, had no legal right to assert any lawful right in

respect of possession of the said stalls at the relevant juncture.

39. However, the argument of the respondent-authorities, that the

impugned action was justified to implement the legal necessity of

adhering to the NCMS Guidelines, cannot be accepted in any context.

Even dispensation of justice cannot justify injustice.

40. In the present case, the means by which the petitioners were denied

from having further access to their stalls was patently unjust, despite

the petitioners not having any legal right to the stalls at the relevant

juncture. Such means, in the present case, do not justify the

otherwise noble end of proper administration of justice.

41. Although the object of such removal might have been legally valid

inasmuch as it conforms to the NCMS Guidelines for the benefit of

the public at large, such legality, by itself, cannot be sufficient reason

to flout all norms of civilized society and the rule of law.

42. Keeping on balance the respective interests of the public at large

towards proper administration of justice and that of the contesting

parties, the appropriate measure would be to somewhat compensate

the errant method adopted in ousting the petitioners by giving

sufficient and adequate rehabilitation to the petitioners within a

reasonable vicinity of their original place of business, that is, the

Malda Court premises.

43. The State Administration cannot shirk its responsibility to follow the

rule of law in resorting to an eviction mechanism which is de hors the

law.

44. Although no useful purpose would be served by directing restoration

of possession to the petitioners at the present stage when the NCMS

Scheme is already underway for implementation at the locale,

adequate redressal, in the present case, should take the shape of

sufficient rehabilitation being provided to the petitioners.

45. In such view of the matter, W.P.A. No.7956 of 2020 is disposed of by

directing respondent nos. 1 and 5 to immediately arrange for suitable

alternative accommodation in lieu of the original stalls to the

petitioners and other stall-owners who were in possession of the stalls

as on November 4, 2019, within reasonable vicinity, not more than

within one kilometer (approximately) radius around the Malda Court

premises, upon prima facie proof of such possession on November 4,

2019 being furnished by the petitioners and other stall-owners. For

such purpose, the respondent no. 1 and/or 5 shall issue public notice

inviting the stall-owners to furnish adequate document to prove such

possession prima facie, to be published in at least one vernacular and

one English daily newspaper in reasonably good circulation in the

locality of the Malda Court premises and also to be displayed at a

conspicuous place in the immediate vicinity of the precincts of the

Malda Court compound, nearabout the former location of the

erstwhile stalls.

46. Such adequate alternative accommodation, commensurate with the

proportions of the former stalls, shall be provided by respondent nos.

1 and 5 to the petitioners and the other vendors displaced from the

Malda Court premises at the earliest, positively by September 30,

2022. In default, it shall be open to the petitioners to claim adequate

monetary compensation and/or damages from the respondent nos. 1

and 5 herein on and from October 1, 2022 before the competent court

and/or appropriate forum. If so approached, such court/forum will

decide the claim of the petitioners for compensation and/or damages

in accordance with law, without being influenced, in any manner, on

merits by the observations made in the present order.

47. There will be no order as to costs.

48. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )