Calcutta High Court
Vikash Mimani & Another vs The Kolkata Municipal on 9 February, 2023
OD-1
APO /6/2023
IA No.GA/1/2023
WPO/3211/2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
VIKASH MIMANI & ANOTHER.
-Versus-
THE KOLKATA MUNICIPAL
CORPORATION AND ORS.
Appearance:
Mr. S.N. Mitra, Sr. Advocate
Mr. Arindam Banerjee, Advocate.
Mr. Saptarshi Datta, Advocate
Ms. Srinjita Ghosh, Advocate,
Mr. Pourush Kanti Pal, Advocate
...for the Appellant
Mr. Biswajit Mukherjee, Advocate
Ms. Tanushree Dasgupta, Advocate
for Kolkata Municipal Corporation. .
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE APURBA SINHA RAY
Date: February 9, 2023.
THE COURT: Let the affidavit of service filed in Court
today be kept with the records.
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This appeal is directed against the judgment and order
dated December 16, 2022 whereby the appellants' writ petition
was in effect dismissed.
The appellants claim to have purchased a property at
premises nos. 8A to 8H, Naresh Mitra Sarani, formerly known
as 8A to 8H, Beltala Road, Kolkata- 700 025 and premises
nos. 28B to 28D, Sakharam Ganesh Dauskar Sarani, formerly
known as 28B to 28D, Townshend Road, Kolkata, 700 025.
The appellants say that when they applied for mutation
in their names, they came to learn that certain persons are
claiming to be thika tenants and some other person to be
bharatias under them in respect of the concerned premises.
Proceedings were initiated before the Thika Controller.
By an order dated March 14, 2019, the Thika controller, in
exercise of his power under Section 5 of the West Bengal Thika
Tenancy (Acquisition and Regulation) Act, 2001, passed an
order declaring that some of the occupants of the concerned
premises are thika tenants. The appellants have challenged
such order before the West Bengal Land & Land Reforms
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Tribunal by way of an original application. Such application is
pending.
The appellants had written a letter dated August 16,
2022, addressed to the Municipal Commissioner and other
officers of the Corporation requesting the Corporation not to
grant mutation or sanction of any construction plan in favour
of the persons, who have been declared to be thika tenants in
respect of the concerned premises, without giving an
opportunity of hearing to the appellants.
With the grievance that the Corporation did not
respond to such letter and the appellants have information
that some of the said thika tenants are surreptitiously
approaching the Corporation authorities for mutation and
sanction of building plan, the appellants approached the
learned single Judge with the present writ petition.
The learned Judge disposed of the writ petition without
passing any order in favour of the appellants. Hence this
appeal.
Appearing for the appellants/writ petitioners Mr. Mitra,
learned senior Advocate, says that the learned Judge failed to
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appreciate that the writ petitioners did not pray for any order
restraining the Corporation from granting mutation or
sanction of building plan in favour of the persons claiming to
be thika tenants. All that they asked for was that the
Corporation, prior to granting mutation or sanction of building
plan in favour of the so called thika tenants or any of them
should grant an opportunity of hearing to the appellants, who
are admittedly the owners of the concerned premises.
Mr. Mukherjee, learned Advocate appearing for the
Corporation says that at least the thika tenants, who are
parties to the original application pending before the Tribunal
should have been made parties to the writ petition. After all,
an order is being sought for from the Court which is likely to
affect such persons.
In reply Mr. Mitra says that it has recently transpired
that some of the thika tenants, who have been impleaded in
the original application have passed away. There is some
confusion as to which of them are still surviving and which of
them are dead. Hence, they have not been made parties to the
writ petition.
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Having heard learned Counsel for the parties we
are of the view that nobody will be prejudiced if the
Corporation prior to sanctioning any building plan or mutating
the name of any applicant as thika tenants in respect of the
concerned premises, grants an opportunity of hearing to the
appellants herein. We are not directing the Corporation to stay
its hands and not to process an application for mutation or
sanction of building plan at all. All we are saying is that at the
time of processing such applications, if any, the appellants
should be given an opportunity of being heard.
We have not gone into the merits of the case at
all. The competent officer of the Corporation, before allowing
any application for mutation or sanction of building plan
touching the concerned premises, shall give an opportunity of
hearing to the appellants or to their authorised
representatives.
The appeal and the connected application are
accordingly disposed of.
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Since we have not called for affidavits, the
allegations in the stay petition are deemed not to be admitted
by the respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
dg/
