Md. Arshad Hussain vs Jaiswal Seva Sangh (Kalitala) ...
2023 Latest Caselaw 3378 Cal

04.    12.05.2023
       Court No.6
      Tanmoy Ghosh
                                           MAT 424 of 2023

                                        Md. Arshad Hussain
                                             -Versus-
                             Jaiswal Seva Sangh (Kalitala) Trust & Ors.

                                                 With
                                         IA No: CAN/1/2023
                                                 With
                                         IA No: CAN/2/2023


                         Mr. Abdul Hadi, Adv.,
                         Mr. Md. Ashfaque Ahmed, Adv.
                                          ...for the applicant/appellant.

                         Mr. Prabhat Kr. Srivastawa, Adv.
                                          ...for the respondent nos. 1 & 2.

Mr. Santanu Mitra, Ld. Sr. Adv., Ms. Anandamayi Ghosh, Adv.

...for the State.

Mr. Alok Kr. Ghosh, Adv., Mr. Dwijadas Chakraborty, Adv.

...for the respondent nos. 4-9 (KMC).

Affidavit of service filed in Court today, be kept with

the records.

In Re: IA No: CAN/2/2023

In the matter of : Md. Irshad Hussain ... applicant

A Judgment and order dated January 17, 2023,

whereby WPA 7041 of 2020 (Jaiswal Seva Sangh (Kalitala)

Trust & Anr. - Vs. - The State of West Bengal & Ors.) was

disposed of by a learned Single Judge, is being sought to

be challenged in an appeal intended to be filed by the

applicant in IA No: CAN/2/2023, which is an application

for leave to prefer appeal since the applicant was not a

party to the writ petition on which the order sought to be

assailed was passed. The applicant says that he has been

forcibly removed from his place of business. This was done

pursuant to the order of the learned Single Judge. Hence

he is an aggrieved party.

We are of the view that the applicant may have

something to say. Leave is granted to prefer appeal against

the order dated January 17, 2023.

The application being IA No: CAN/2/2023 is allowed

and disposed of.

In Re: MAT 424 of 2023 With IA No: CAN/1/2023

By consent of the parties, the appeal and the

connected application are taken up together for hearing.

The appellant says that he was carrying on business

of selling food items and the Kolkata Municipal

Corporation has also granted certificate of enlistment in his

favour. He has annexed a Certificate of Enlistment for the

year 2013 which mentions the business address as 3,

Balak Dutta Lane. The business apparently was being

carried on from a portion of the footpath and/or public

street.

Complaint was lodged by the writ petitioners with the

Corporation. Pleading inaction on the part of the

Corporation, the writ petitioners approached the learned

Single Judge. Before the learned Single Judge, a report was

filed on behalf of the Corporation mentioning that the

encroachment has been removed with the help of Police

Authority. Learned Advocate for the writ petitioners

admitted that the encroachment had indeed been removed.

In view of the aforesaid, the learned Judge disposed of the

writ petition.

The appellant says that he has been illegally removed

from his place of business.

The Corporation says that apart from the fact that the

Certificate of Enlistment which the appellant is relying on

is not a current one and is of the year 2013, issuance of

Certificate of Enlistment by the Corporation does not

amount to any admission or recognition on the part of the

Corporation that the applicant is a lawful occupant of the

business premises. A Certificate of Enlistment is to be

renewed from year to year.

Having heard learned Counsel for the parties, we are

of the considered opinion that the dispute involved between

the parties is of civil nature. The Corporation has carried

out its statutory duty under Section 372 of the Kolkata

Municipal Corporation Act, 1980. If the appellant has any

grievance, he will be at liberty to approach the civil forum

for appropriate relief, in accordance with law. If the civil

forum is so approached, it is requested to decide the

appellant's case uninfluenced by any observation in this

order, in accordance with law.

We find no apparent infirmity in the order under

appeal.

Since we have not called for affidavits, the allegations

in the stay petition shall be deemed not to have been

admitted by the respondents.

The appeal being MAT 424 of 2023 and the connected

application being IA No: CAN/1/2023 are accordingly

dismissed.

Let urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with all requisite formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)