Calcutta High Court (Appellete Side)
Amulya Ratan Das vs Union Of India & Ors on 22 September, 2022
22.09.2022
Item No.05
Court No.32
Avijit Mitra
FAT 212 of 2018
with
IA No. CAN 1 of 2018 (Old No.CAN 5644 of 2018)
with
IA No. CAN 2 of 2018 (Old No.CAN 5649 of 2018)
Amulya Ratan Das
- Versus -
Union of India & ors.
Mr. Ashish Chandra Bagchi,
Mr. Prabir Kumar Misra,
Mr. Shibendra Nath chattopadhyay,
Mr. Priyam Misra
...for the appellant
Mr. Dhiraj Trivedi, Ld. Asst. A.S.G.,
Mr. Indrajit Dasgupta,
Mr. Biswajit Maity
...for the respondent nos.1& 2
Mr. Samrat Sen,
Ms. Manali Ali
...for the State
The present appeal has been preferred challenging
the judgment and decree dated 28 th March, 2018 passed
by the learned Judge, 4th Bench, City Civil Court at
Calcutta in Title Suit No.442 of 1988. In connection
with the appeal, an application for injunction being IA
No.CAN 2 of 2018 (Old No.CAN 5649 of 2018) has been
preferred. The parties have exchanged their affidavits in
the said application. Let the said affidavits and the
supplementary affidavits affirmed by the appellants, as
filed, be kept on record.
Mr. Bagchi, learned senior advocate appearing for
the appellant submits that the suit property had been
taken out from the boundary of Calcutta Maidan under
Presidency Circle Case no.5829 dated 19th January,
2021 and the Union of India or the Estate Officer have
no authority to dispossess the appellant from the said
property. The said respondents had no jurisdiction to
proceed against the appellant under the provisions of
Public Premises (Eviction of Unauthorised Occupants)
Act, 1971. The suit was preferred seeking a declaration
that the plaintiffs are governed by the provisions of
Section 4 of the Rehabilitation of Displaced Person and
Eviction of Person in Unauthorised Occupation of Land
Act, 1951 read with Section 1(3) of the Rehabilitaion of
Displaced Person and Eviction of Persons in
Unauthorised Occupation of Land (Continuance of
Provisions) Act, 1964. In view thereof, the bar of
jurisdiction under Section 15 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 is not
applicable.
Mr. Bagchi argues that the appellant had all along
been enjoying the interim order in the suit and that in
the event the appellant's possession is not protected, he
would suffer severe prejudice and that the appeal itself
would become infructuous.
Mr. Trivedi, learned Assistant Additional Solicitor
General appearing for the respondent nos. 1 and 2
submits that the suit was filed without service of notice
upon the respondents, as required under Section 80 of
the Code of Civil Procedure and as such the said suit
was not maintainable. In support of such contention he
has placed reliance upon a judgment delivered in the
case of State of Kerala & ors. vs. Sudhir Kumar Sharma
& ors. reported in (2013) 10 SCC 178.
He argues that the suit was preferred suppressing
material facts. The suit land had been illegally occupied
by the appellant. The piece of land i.e. 'Brick Stack Yard'
measuring about 0.215 acres was under the
Government of India and was of military importance.
The suit land was never placed under the control of the
State Government and as such the lis is governed by the
provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971.
Drawing our attention to a document annexed at
page 59 of the affidavit-in-opposition, Mr. Trivedi
submits that an affidavit was affirmed and submitted by
the appellant before the respondent no.2 stating that he
was willing to vacate the illegally occupied land within
30 days. In view thereof, the appellant is not entitled to
the interim order, as prayed for.
In reply, Mr. Bagchi submits that the appellant
was compelled to file such affidavit and on the basis of
the same the appellant cannot be denied the interim
order as prayed for.
In reply to the report of the Additional Stamp
Reporter, Mr. Bagchi submits that the learned Court
below by an order dated 2nd June, 2014 directed
expunction of the name of Purnima Das from the cause
title of the suit. In spite of the said order, the name of
Purnima Das was not deleted and her name also
appeared in the decree. For such defect, the appellant
cannot be faulted.
Heard the learned advocates appearing for the
respective parties and considered the materials on
record.
By the order dated 2nd June, 2014 the learned
Court categorically observed that the plaintiffs need not
serve any notice under Section 80 of the Code. The said
order was not challenged by the respondents. The suit
was filed in the year 1988. The appellant obtained an
interim protection from the learned Court below and
had continued in possession till date. Prima facie, in our
opinion grant of the interim order, as prayed for, would
not cause a greater loss and prejudice to the
respondents than the loss and prejudice, the absence
thereof, is likely to cause to the appellant.
Accordingly, there shall be an interim order of
status quo as regards the possession of the appellant till
the disposal of the present appeal.
The appellant is also restrained from changing the
nature and character of the land till disposal of the
appeal.
The application being IA No.CAN 2 of 2018 (Old
No.CAN 5649 of 2018) is, accordingly, disposed of.
Let the hearing of the appeal be expedited.
As Mr. Dasgupta, learned advocate has entered
appearance on behalf of the respondent nos. 1 and 2,
service of notice of appeal upon the said respondents, is
dispensed with.
The appellant is directed to put in the requisites
towards service of notice of appeal upon the non-
appearing respondent nos. 3 and 4. Let such requisite
be put in within a week from date.
Lower Court Records be called for through Special
Messenger at the cost of the appellant. Such costs shall
be deposited by the appellant within one week from
date.
It is made clear that before sending the Lower
Court Records, the Registry of the learned Court below
shall ensure that the name of Purnima Das is deleted
from the original decree.
Office is also directed to send down the certified
copy of the decree to the learned Court below for
deletion of the name of Purnima Das from the same. A
photostat copy of the certified copy of the decree shall
be retained on record.
Immediately, after arrival of the Lower Court
Records, the office shall examine the same and, if found
complete, shall issue notice of arrival of Lower Court
Records to the learned advocate appearing for the
appellant.
The appellant is directed to prepare requisite
number of informal paper books-printed, typewritten or
cyclostyled, as the case may be, out of Court, within two
weeks from the date of service of notice of arrival of
Lower Court Records and to file the same after serving
copies thereof upon the learned advocates appearing for
the respondents.
All formalities regarding preparation of paper
books are dispensed with but the learned advocate for
the appellant shall incorporate all the relevant
documents in the informal paper books.
Liberty to mention.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
