Thermofriz Insulations Ltd. & Anr vs The Kolkata Municipal ...
2022 Latest Caselaw 6907 Cal

                       IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                 Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                                WPA No. 30705 of 2015

                                          With
                                WPA No. 1513 of 2019
                                          With
                                  IA CAN 4 of 2020
                                          With
                                WPA No. 5856 of 2020
                                          With
                                WPA No. 10376 of 2021

                      Thermofriz Insulations Ltd. & Anr.
                                     Vs.
                   The Kolkata Municipal Corporation & Ors.


For the writ petitioners   :-     Mr. Jaydeep Kar, Sr. Adv.
                                  Mr. Arindam Banerjee, Adv.
                                  Mr. Arpita Saha, Adv.
                                  Ms. Rituparna Chatterjee, Adv.
                                  Ms. A. Banerjee, Adv.

For the KMC                :-     Mr.   Ashok Banerjee, Sr. Adv.
                                  Mr.   Alok Kumar Ghosh, Adv.
                                  Mr.   Gopal Chandra Das, Adv.
                                  Mr.   Subhrangshu Panda, Adv.

For the State              :-     Mr. Bibek Jyoti Basu, Adv.
                                  Ms. Debarati Sen (Bose), Adv.
                                        ...In WPA 1513 of 2019 & WPA 5856 of 2020.

Hearing concluded on       :-     02.09.2022

Judgment on                :-     26.09.2022


Amrita Sinha, J.:-


          The matter relates to the premises no. 53A, Diamond Harbour Road,

Kolkata 700034 measuring approximately 90 kathas 10 chittacks and 19 sq. ft.

within ward no. 119, Borough no. XIII under the jurisdiction of the Kolkata

Municipal Corporation ('KMC' for short).

          The petitioner no.1 is a Company incorporated under the Companies

Act, 1956. The petitioner no.1 claims to be the sole proprietor of the

proprietorship firm Swadeshi Pesticides (mentioned as Swadesi Properties in
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paragraph 6, page 8 of WP No. 30705 (w) of 2015 and in paragraph 5, page 5 of

WP No. 1513 (w) of 2019).

          Mutti Lall Seal Estate, a Trust, was and still is the owner of the said

premises. By separate deeds of lease allegedly registered before the competent

authority, Kolkata, on diverse dates, the trustees of the Trust estate granted lease

of the aforesaid plot of land in favour of the proprietorship firm Swadeshi

Pesticides sometime in the year 1984, followed by supplementary deeds of lease

in the year 1991 and 2011. The petitioner no.1, being the proprietor of Swadeshi

Pesticides, claims to be the lessee of the said premises.

          After obtaining the lease hold interest of the property, the petitioner

no.1 applied for amalgamation of the properties taken on lease and the present

amalgamated premises no. 53A, Diamond Harbour Road came into existence. The

name of the petitioner no.1 has been incorporated in the municipal assessment

book maintained by KMC upon mutation in the year 2014. The petitioners claim

to be in possession of the said property upon payment of necessary rates and

taxes.

          The petitioners have averred in the writ petition that on or about 6th

July, 2015 they got the knowledge of a purported foundation stone laid down by

the KMC sometimes on 1st March, 2014 for construction of a proposed ward

health unit on Seal Thakurbari Road. The petitioners allege that the said stone

was laid without the knowledge or consent of the petitioners.

          According to the petitioners, the entire property comprising of 90 kathas

10 chittacks and 19 sq. ft. is the private property of the petitioners and the

petitioners never transferred any part or portion of the said property in favour of

any person or KMC. The petitioners claim that no part of the property in question

was ever possessed by the Corporation and allege that KMC has trespassed into

the private property of the petitioners.

          The petitioners assert that KMC does not have any right, title or interest

over the portion of the said plot and is liable to remove its belongings from the

said portion and hand over peaceful vacant possession of the plot in question in
                                            3


favour of the petitioners so that the petitioners can enjoy the same as per their

wish and desire.

          As the Corporation took steps to construct a health centre over a

portion of the said plot of land, the petitioners approached this Court by filing a

writ petition being WP 25499 (W) of 2015. The said writ petition stood disposed of

on 18th December, 2015 inter alia directing the respondent authorities to pass a

reasoned order on the representation filed by the petitioners. The Court also

restrained the Corporation from making any construction on the said premises or

changing the nature and character of the said premises till the disposal of the

representation filed by the petitioners.

Despite the order of Court, as the Corporation continued with the work

of construction, the petitioners preferred the second writ petition being WP 30705

(W) of 2015 wherein order was passed on 30th December, 2015 restraining the

Corporation from carrying out any construction on the said premises till the

disposal of the representation filed by the petitioners.

In compliance of the order passed by the Court, the Municipal

Commissioner considered the representation filed by the petitioner and passed a

reasoned order on 11th September, 2018.

By the reasoned order dated 11th September, 2018, the Municipal

Commissioner referred the issue of ascertaining the actual recorded owner and

the character of the land measuring 72.08 sq. mts. within the 90 kathas 10

chittacks and 19 sq. ft. of land to the District Magistrate and Collector, South 24

Parganas based upon past records.

The Commissioner recorded that at present the aforesaid portion falls

within the territorial jurisdiction of ward no. 119 of the KMC and the land will be

used of setting up of a health unit to cater to the health service of the entire ward.

The order further recorded that the big dia tubewell which exists in the said

portion of the plot of land may be used for water supply in the area in case of

acute water crisis of the locality.

Being aggrieved by the reasoned order dated 11th September, 2018 the

petitioners filed the third writ petition WP 1513 (W) of 2019. The Court, by an

order dated 29th January, 2019 passed in the third writ petition, restrained the

respondent authorities from making any construction at the said premises for a

limited period. The said interim order has been extended from time to time.

By a letter dated 4th February, 2019 the Assessor Collector (South

Suburban Unit) KMC requested the lessor i.e, the trustees of the Trust property

and Swadeshi Pesticides represented by the petitioner no.1 to attend a hearing

with all relevant documents on 13th February, 2019 to review the amalgamation

of the premises nos. 53A & 53A/1, Diamond Harbour Road, Ward no. 119. Copy

of the said notice was forwarded to the Chief Municipal Health Officer, KMC,

Chief Valuer & Surveyor, KMC, Dy. Chief Municipal Officer, and the Executive

Engineer (Civil/Br. XIII) with request to attend the hearing with all documents.

On 12th February, 2019 a legal notice was issued on behalf of the

petitioners to forthwith cancel, rescind and revoke the hearing notice. The

petitioner's representative attended the hearing held on 13th February, 2019.

The petitioners allege that on 6th March, 2019 certain men, claiming to

be engaged by KMC proceeded to forcibly pull down a portion of the boundary

wall surrounding the said premises and illegally demolished a portion of the

boundary wall abutting Seal Thakurbari Road and proceeded to construct a

separate wall inside the said premises on its northern side. The petitioners were

compelled to file application for contempt in connection with the second as well

as the third writ petition.

A General Application was also filed in connection with the third writ

petition for an order of injunction restraining the KMC and its men and

functionaries from interfering and/or disturbing the possession of the petitioners

in the said premises. An order directing the respondents to restore status quo

ante in respect of the said premises was also prayed for.

In the contempt application, the Municipal Commissioner affirmed an

affidavit declaring that the alleged acts and actions complained of and referred to

in the contempt application are not of any of the authorities of KMC. It was

asserted that no action was taken on the part of the KMC to make any

construction on the land in question.

Relying on the basis of the aforesaid averment made by the Municipal

Commissioner, the Court was pleased to dispose of the contempt application by

order dated 27th June, 2019 with liberty to the petitioners to remove the offending

construction in accordance with law. The question of the perceived rights of the

respondent authorities in a portion of the said premises and the reconstruction

and restoration of the boundary wall were left upon to be decided in the pending

writ petitions.

The petitioners claim that on 14th March, 2020 certain functionary

persons claiming themselves to be the men and agents deployed by KMC came to

the premises and pulled down the entire boundary wall facing Seal Thakurbari

Lane and drove in a back hoe loader into the said premises. The petitioners were

compelled to lodge a police complaint immediately thereafter. Steps were taken to

enlist the pending writ petitions for hearing but due to the Covid 19 pandemic the

hearing could not be held.

On 21st June, 2020 during the unlock phase one of the national

lockdown, some other persons claiming to be the employees and agents of the

Corporation forcibly re-entered the said premises with tools and construction

equipment and started to excavate a portion of about one katha and odd. The

petitioners lodged a further complaint before the police on 23rd June, 2020.

On enquiry, the petitioners came to learn that a noting was made in the

inspection book maintained by KMC subtracting an area of about 72.08 sq. ft.

equivalent of 1 katha 1 chittack and 10 sq. ft. and recording the same as "child

part" of the premises in question in the name of the KMC having knowledge that

the KMC does not have any right, title or interest over the said property. The said

child part appears to have been approved by the Municipal Commissioner long

ago that is on 26th February, 2019.

Being aggrieved by the impugned correction in the municipal records by

hiving of an area of 72.08 sq. ft. equivalent to about 1 katha 1 chittack and 10 sq.

ft. as child part from the amalgamated premises and recording the same in the

name of the KMC, the petitioners filed the fourth writ petition being WP 5856 (W)

of 2020.

The petitioners also filed an application in connection with the pending

third writ petition and took steps for hearing all the writ petitions, but in view of

the second wave of the pandemic the judicial activity of this Court being regulated

to a considerable extent, the hearing matter could not be taken up for

consideration by the Court. Taking advantage of the said situation the men and

agents of the KMC, continued with the excavation work in full swing.

It came to the knowledge of the petitioners in and around April, 2021

that the KMC by way of suppression created the premises no. 53A/2 and the

remaining portion of the said premises was renumbered as 53A/1, Diamond

Harbour Road.

Challenging the aforesaid act of KMC in separating the portion of the

said plot from the mother premises and creating child premises, the petitioners

filed the fifth writ petition being WPA 10376 of 2021. The second, third, fourth

and the fifth writ petitions are presently being adjudicated by the Court.

It is the specific contention of the petitioners that KMC being a

statutory authority ought not to trespass into the private land of the petitioners.

KMC has failed to show a single scrap of document in support of their possession

of the land in question. KMC has intentionally not disclosed anything regarding

their stand on possession of the portion of the land in question. There is no

concept of creating child part in the municipal records. Adverse possession has

not been pleaded by KMC. As twelve years' period has not elapsed from the date

of taking over forcible possession, accordingly, KMC cannot claim their right

through adverse possession. Relying only on the basis of long possession, KMC

cannot exercise right over a portion of the said plot.

Corporation mutated the property in the name of the petitioners after

verifying the records and the quantum of land possessed by the petitioners was

recorded in the municipal assessment book. The Corporation does not have any

right, title or interest over the portion of the plot of land which has been

separated and recorded as a child part of the said premises. There is no valid

ground/reason for de-amalgamation of the child part from the mother premises.

The petitioners pray for a direction upon the KMC to cancel/rescind and

revoke the purported corrected municipal records and to forthwith restore the

municipal records including the municipal assessment book as was existing prior

to hiving of the area of 1 katha 1 chitack and 10 sq. ft. as child part.

Prayer has also been made to remove any construction work that has

been made by KMC on the aforesaid plot of land.

The petitioners refer to the provision of Section 535 of the KMC Act,

1980 relating to the power of the KMC to acquire and hold movable and

immovable property, S. 536 relating to acquisition of immovable property by

agreement, S. 537- the procedure when immovable property cannot be acquired

by agreement, S. 538- power to hire or take on lease immovable property, S. 540-

inventory of the properties of the Corporation, S. 248 relating to prohibition

regarding sinking of tubewells, S. 249 relating to the Municipal Commissioner's

direction to sink tubewell in some cases, S. 250 - register to be maintained by the

Municipal Commissioner containing the inventory of the tubewells, public or

private sunk in Kolkata which is to be updated from time to time, S.180 relating

to revision of assessment, S. 183 - notice of transfers and Section 178(3) of the

KMC Act, 1980 relating to the power of the Municipal Commissioner to

amalgamate or separate lands or buildings or portions thereof.

In support of the prayer made in the writ petition the petitioners rely on

the decision delivered by the Hon'ble Supreme Court in the matter of D. B.

Basnett (dead), through legal representatives -vs- Collector East District,

Gangtok, Sikkim and Anr. reported in (2020) 4 SCC 572 wherein the Court

held that the party would be entitled to the possession of the land as also

damages for illegal use and occupation of the same by the respondent authority.

The owner will be entitled to damages for wrongful use and possession of land

which was not acquired in accordance with law.

The petitioners also rely upon the judgment delivered by the Hon'ble

Supreme Court in the matter of Vidya Devi -vs- State of Himachal Pradesh &

Ors. reported in (2020) 2 SCC 569 wherein the Court held that the State being

the welfare State, cannot be permitted to take the plea of adverse possession,

which allows the trespasser to gain legal title over a property for over twelve

years. The State cannot be permitted to perfect its title over the property by

invoking the doctrine of adverse possession to grab the property its own citizens.

Reliance has been placed on the decision delivered by the Hon'ble

Supreme Court in the matter of Tukaram Kana Joshi & Ors. -vs-

Maharashtra Industrial Development Corporation & Ors. reported in (2013)

1 SCC 353 wherein the question before the Court was whether in a democratic

body polity, which is supposedly governed by the rule of law, the State should be

allowed to deprive a citizen of his property without adhering to law. The Court

observed that the functionaries of the State took over possession of the land

without any sanction of law and the Court held that the same must either comply

with the procedure laid down for acquisition, or requisition, or any other

permissible statutory mode. The State specially a welfare State governed by the

rule of law, cannot arrogate itself to a status beyond one that is provided by the

Constitution. The Court was pleased to direct payment of market value of the

land in dispute along with other statutory remedies.

Reliance has also been placed on the judgment delivered by the Hon'ble

Supreme Court in the matter of Board of Wakf -vs- Government of India &

Ors. reported in (2004) 10 SCC 779 wherein the Court held that in the eye of

law, an owner would be deemed to be in possession of a property so long as there

is no intrusion. Non-use of the property by the owner even for a long time will not

affect is title. A party claiming adverse possession must prove that his possession

is "nec vi, nec clam, nec precario", that is peaceful, open and continuous. The

possession must be adequate in continuity, in publicity and in extent to show

that their possession is adverse to the true owner. It must start with a wrongful

disposition of the rightful owner and be actual, visible, excavation, hostile and

continued over the statutory period.

Learned advocates representing KMC vehemently opposes the

submissions and prayers of the petitioners. It has been submitted that the title of

the petitioners is not very clear in respect of the entire plot of land as the

petitioners have intentionally and deliberately not revealed the deeds of lease in

any of the writ petitions.

It has been submitted that the petitioner no.1 is not the lessee of the

plot of land and the actual lessee that is M/s. Swadeshi Pesticide has not been

impleaded as party respondent in the writ petition. The petitioners have also not

impleaded the lessor of the property as respondent.

The disputed portion of the plot of land has a big dia tubewell implanted

therein which has presently become defunct due to non use. The petitioners have

not asserted as to who installed the big dia tubewell. The petitioners say that they

did not implant the same. In the absence of the said assertion, it is to be taken

that the said big dia tubewell was sunk by the government officials, as disclosed

in the affidavit filed by the KMC.

It may be that the said big dia tubewell was sunk with the expressed

consent/permission of the owner that is the trustees of the trust property. The

right of the petitioners flows from the deeds of lease. The same is a vital piece of

evidence which has conveniently not been produced before the Court. Through

the writ proceedings the petitioners are trying to create evidence and correct the

title to the property.

The respondents contend that the primary prayer of the petitioners is

for recovery of possession and the said relief ought not to be granted by the writ

Court. The petitioners ought to be relegated to the civil Court where decision may

be taken upon perusal of evidence produced before the Court.

The learned advocate contends that possession of a property is

distinguishable from having title over a property. The fact that KMC is in

possession of the disputed portion of the property is evident as the petitioners

have made a prayer for recovery of possession.

It has been argued that KMC does not claim title over the property but,

admittedly, the possession of the same is with KMC for a considerable period of

time by virtue of the big dia tubewell which was in existence for a long period and

has presently become defunct because of the modern and developed water supply

system by the KMC.

It has been argued that the petitioners are indirectly trying to

dispossess the KMC from possession of the disputed portion indirectly through

the writ proceedings. It has been stressed that what cannot be done directly,

cannot be done indirectly.

It is settled position of law that even a trespasser cannot be evicted

without resorting to the provision of law. As the Corporation is in possession of

the disputed portion for a considerable period of time, the Corporation may be

evicted only upon proper exercise of law and not merely through the writ

proceedings initiated by the petitioners. It has been submitted that the right to

property is applicable both in respect of the petitioners as well as the respondent

authority. Only because of the fact that the respondent authority is a State, the

said authority ought not to be dispossessed by invoking provision of Article 226 of

the Constitution of India.

According to the respondents the petitioners are trying to adopt a

shortcut method to get rid of the KMC without adopting the proper procedure

prescribed in law. As the Corporation was in possession even prior to the

petitioners acquiring right in the property, accordingly, it has to be held that the

possession of the Corporation is continuous, without any disturbance from the

owner.

Notice of the Court has been drawn to the fact that certain paragraphs

dealing with the factual aspect have been affirmed as true to the knowledge of the

deponent. It has been contended that as the deponent was not in the picture at

the relevant point of time, the deponent, under no stretch of imagination, could

have direct knowledge of the issue in question. Knowledge is to be derived from

the owner of the property who has not been impleaded as party respondent and

as such vital facts and missing links cannot be ascertained conclusively.

In support of the aforesaid contention the respondents rely upon the

judgment delivered by the Hon'ble Supreme Court in the matter of Lallu

Yeshwant Singh -vs- Rao Jagdish Singh & Ors. reported in AIR 1968 SC 620

on the issue that even a trespasser cannot be evicted or disposed without

resorting to the proper provision of law.

Reliance has been placed on the judgment delivered by Hon'ble

Supreme Court in the matter of J. Jose Dhanapaul -vs- S. Thomas & Ors.

reported in (1996) 3 SCC 587 on the issue that in the absence of a proper party

the writ petition would not be maintainable and proper adjudication cannot be

made.

The respondents also rely upon the judgment delivered by the Hon'ble

Supreme Court in the matter of Bharat Singh & Ors. -vs- State of Haryana &

Ors. reported in (1988) 4 SCC 534 on the issue that when a point is required to

be substantiated by facts the party raising the point, if he is the writ petitioner,

must plead and prove such facts by evidence which must appear from the writ

petition. If the facts are not supported by evidence, the Court will not entertain

the point. In a writ petition not only the fact but also the evidence in proof of such

facts has to be pleaded and annexed.

It is the specific case of the KMC that the lease deed which is an

important piece of evidence has not been annexed to the writ petition and in the

absence of the same the writ petition will not be maintainable at the instance of

the petitioners.

The respondents strongly pray for dismissal of the writ petition.

I have heard the rival submissions made on behalf of both the parties

and have perused the materials placed before the Court.

It appears from the documents annexed to the writ petition and the

submissions made on behalf of both the parties that both asserts right over the

disputed portion of the plot of land. The petitioners claim lease right in respect of

the property relying on the deeds of lease executed by the trustees in favour of

one M/s. Swadeshi Pesticide whereas the Corporation exercises right over the

property on account of long continuous possession through the big dia tubewell

which is embedded in the disputed portion of the mother premises but has

presently become defunct. KMC does not claim ownership of the disputed portion

of land, but merely claims possessory rights.

For proper adjudication of the disputes amongst the parties it is

absolutely essential to peruse the lease deeds. The same has neither been

annexed nor produced before the Court. Though it appears from the documents

annexed to the writ petition that the entire portion of land of approximately 90

kathas 10 chittacks and 19 sq. ft. has been recorded in favour of the petitioners

in the municipal assessment book maintained by the KMC, but recording of the

name of the petitioners in the municipal assessment book neither creates nor

extinguishes title of any person whose name has or has not been recorded. Right

to the property flows from the title deeds. For reasons best known to the

petitioners, the same has not been annexed to any of the five writ petitions filed

by them.

None of the parties are aware as to the date or the period during which the

big dia tubewell was sunk and by whom. According to the affidavit filed by the

KMC the big dia tubewell was sunk by the government officials. No record has

however been produced before this Court with regard to the proper authority who

sunk the tubewell and when.

Neither of the parties produced any evidence as to whether the tubewell

was sunk with the expressed permission of the owner or not. The lease in

question was executed in favour of the lessee in 1984. From the date of the lease

till the date of laying the foundation stone for construction of the ward health

unit, it does not appear that, none of the parties took any step in respect of the

disputed portion of land.

The fact of existence of the dia tubewell inside the premises has not

been disputed by the petitioners. As the big dia tubewell is presently defunct, as

admitted by the KMC, it can be safely presumed that the same was not in use for

quite some time, and most certainly, prior to the date of execution of the lease

deeds. Can it not be taken that the big dia tubewell was in existence at one point

of time and have presently become defunct due to non-use of the same? Will it be

incorrect to infer that the owner never objected to the sinking of the big dia

tubewell by the government officials as the same was for the benefit of the general

public?

The petitioners have not asserted that the big dia tubewell was sunk for

the benefit and use of the owner. On the contrary, KMC has submitted that the

big dia tubewell was sunk for the use of the local people and the same may again

be used for the benefit of the public at the time of water scarcity. It has been

submitted in Court that the size of the big dia tubewell suggests that the same

was not meant for private use but for use of the public at large.

KMC has not been able to produce any evidence to show that the owner

gave consent for setting up of the big dia tubewell on the said plot of land. Till

such time the disputed portion of 1 katha 1 chittack and 19 sq. ft. was carved out

from the total plot of 90 kathas 10 chittacks and 19 sq. ft., the entire plot was

recorded in favour of the petitioners. It is only when the dispute cropped up with

regard to the aforesaid portion of 1 katha 1 chittack and 19 sq. ft., did KMC

create a child part within the mother premises.

At the same time, the Court cannot lose sight of the fact that the area in

question did not originally fall within the jurisdiction of KMC but was later added

within the boundaries of KMC. Possibly for the said reason, the Municipal

Commissioner referred the matter to the District Magistrate & Collector, South 24

Parganas for verification of the past records.

As the tube well remained defunct for a considerable period of time, the

owner could have surreptitiously removed the same and handed over

encumbrance free possession to the lessee, but the owner did not take the risk of

doing so. Even after taking possession of the lease hold property, the lessee could

have removed the same without notice to anybody, as the lessee/ petitioner no.1

claims exclusive possession over the portion where the tubewell is sunk, but for

some reason or the other, the petitioner no.1 refrained from doing so.

The big dia tubewell is still embedded and none is aware as to how and

when the same came into existence. The mystery of the big dia tubewell can best

be solved upon examination of witnesses and upon perusal of the title deed(s) of

the property. There are several disputed facts which are to be ascertained

conclusively prior to taking a decision in the matter.

The impugned order of the Municipal Commissioner dated 11th

September, 2018 mentions that to consider the seriousness of the technical

issues in the case as well as the public health related facilities required for the

population of ward no. 119, a seven members' fact finding committee was

constituted by the order of the Municipal Commissioner. A preliminary enquiry

and search of documents, records and different submissions were considered for

preparation of a report which was submitted by the fact finding committee before

the Municipal Commissioner on 6th September, 2018. A hearing was conducted.

The departments namely water supply, law, health and assessment were

represented in the hearing by the respective controlling officers. The petitioners

were also represented by their learned advocate. The said report has neither been

supplied to the petitioners nor brought on record.

However, the impugned order mentions that the premises no. 53A,

Diamond Harbour Road was created after amalgamation of two premises in the

year 2014. The big dia tubewell existed in the said premises prior to

amalgamation. Though the impugned order does not specify that the KMC

installed the said big dia tubewell, but it mentions that the then government

authorities installed and maintained the said big dia tubewell.

There is no reference of the big dia tubewell in the file/record/plan/

digitized map or the inventory list of the KMC properties of 2015-16 maintained

by KMC. The same came to light only after the laying of the foundation stone on

1st March, 2014 for the proposed ward health unit. In the meantime, the

mutation on amalgamation application made by the petitioner on 8th March, 2014

was granted on 24th June, 2018 only for revenue purpose. The impugned order

mentions that the 'child part' has been carved out from the mother premises in

greater public interest for setting up of a ward health unit and to render civic

service to the inhabitants of the locality.

The tenor of the impugned order clearly reveals that there is no legal

document in favour of KMC for holding on to the disputed portion of the land.

KMC falls back on the plea of long uninterrupted possession.

Though KMC has raised an issue with regard to the locus of the

petitioners to move the instant writ petition in the absence of the lessor, but fact

remains that, the name of Swadeshi Pesticides, the proprietorship firm of the

petitioner no.1 has been incorporated in the records maintained by the KMC as

lessee. The mutation certificate issued by KMC in the year 2014 wherein the

name of the petitioner no.1 appears as the representative of the sole proprietor

M/s. Swadeshi Pesticide in respect of 90 kathas 10 chittacks and 19 sq. ft. is

annexed to the writ petition. The petitioner no.1 relies upon the said mutation

certificate in support of its right, whereas, KMC claims right on the basis of long

uninterrupted possession.

Even though the initial lease was executed in the year 1984 the

petitioners, for reasons unknown, did not take steps for mutating or

incorporating the name of the lessee in the records of the Kolkata Municipal

Corporation within the time specified in the Act. The application for mutation on

amalgamation was submitted on 8th March, 2014 and the same was allowed on

24th June, 2018. In the interregnum, the foundation stone for construction of the

ward health unit was laid on 1st March, 2014 i.e. prior to the submission of the

application for mutation by the petitioners.

As adverse possession has not been pleaded and as KMC does not claim

ownership of the disputed portion, as such, the decision in Vidya Devi (supra) will

not come to the aid of the petitioners. KMC only claims possessory right.

The Hon'ble Supreme Court in the matter of Karnataka Board of Wakf

(supra) held that a person who claims adverse possession should show (a) on

what date he came into possession, (b) what was the nature of its possession, (c)

whether the factum of possession was known to the other party, (d) how long the

possession has continued and (e) if possession was open and undisturbed.

The Court held that a person pleading adverse possession has no equity

in his favour. Since he is trying to defeat the right of the true owner, it is for him

to clearly plead and establish the fact necessary to establish his adverse

possession. KMC has failed to satisfy the test as laid down by the Supreme Court.

When a person is in possession of a property there is no requirement of

proving possession thereof. It is only when there is an intrusion on the said right,

that the question of proving ownership/possession arises.

In the present case, the petitioners claim to be in possession of the

property by way of separate indentures of lease executed in the year 1984

onwards and since thereafter there was no issue with regard to the ownership/

title/ possession of the property. It is only when in the year 2014 the foundation

stone was laid by the KMC, the petitioners stood up to protect their right by filing

the writ petition in the year 2015. Since thereafter as many as five writ petitions

have been filed by the petitioners to protect their title/possession over the

property.

At this stage both parties claim to be in possession. It is absolutely not

possible for the writ Court to arrive at a decision as to who ought to be the actual

possessor of the disputed portion on the basis of the averments made and

documents available before the Court. It will be highly improper to dispossess a

party from the disputed portion without being satisfied as to whether the said

party is holding the land in accordance with law or not.

As mutation neither creates nor extinguishes title, accordingly, creating

a 'child part' will not rob away the petitioner no.1 from exercising its lawful right

as lessee, provided the petitioner no.1 has all documents in support of its right.

In Tukaram Kana Joshi (supra) possession of the land was taken

without any authority of law. Here, KMC claims to be in uninterrupted possession

for a considerable period of time. Under which authority did KMC get possession

of the land is the question, which is yet to be answered. Accordingly, the said

decision does not help the petitioners.

In D. B. Basnett (supra) the Court held that the owner will be entitled to

damages for wrongful use and possession of land which was not acquired in

accordance with law. In the present case, there is nothing on record to show that

KMC is holding the land wrongfully. On the contrary, KMC avers that the land

was used for the general public, and the owner who could have rebutted the said

contention, has not been made a party in the writ petition. The said decision also

does not support the case of the petitioner.

In J. Jose Dhanapaul (supra) the Court held that in the absence of a

proper party the writ petition would not be maintainable and proper adjudication

cannot be made. The owner appears to be a necessary party who could have

provided answers to a couple of issues raised. The proprietorship firm, which has

an independent identity, and in whose favour the property is allegedly leased out

has also not been made party in the writ. Without all the creases being ironed

out, proper relief cannot be granted.

In Bharat Singh (supra) the Court stressed on evidence. The evidences

available on record in the instant case are not enough to either put into

possession or to dispossess a party from the disputed portion. A cloud has been

raised with regard to the right of the petitioners.

In Lallu Yeshwant Singh (supra) the Court laid down that even a

trespasser cannot be evicted or disposed without resorting to the proper provision

of law.

There is a specific provision in the Code of Civil Procedure relating to

recovery of possession. None of the parties can be permitted to create evidence to

perfect their title and recover possession in a shortcut manner without adducing

proper evidence. The parties are accordingly relegated to the appropriate Court

for relief. It is made clear that creating a child part in favour of KMC will not

create any right, title or interest in favour of KMC and both the parties are

directed to maintain status quo and further restrained from changing the nature,

character and possession of the disputed portion till the rights of the parties are

decided by the competent Court of law.

The Municipal Commissioner is directed to forward to the petitioners

the report(s) of the fact finding committee relying upon which the impugned order

dated 11th September, 2018 was passed by the Municipal Commissioner.

All the writ petitions and the connected applications stand disposed of.

Urgent certified photocopy of this judgment, if applied for, be supplied

to the parties or their advocates on record expeditiously on compliance of usual

legal formalities.

(Amrita Sinha, J.)