Calcutta High Court (Appellete Side)
Jalaluddin Sk vs The Chief Medical Officer on 18 September, 2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Sen
WPA 22039 of 2012
With
CAN 1 of 2015 (Old No. CAN 11703 of 2015)
Jalaluddin Sk.
Vs.
The Chief Medical Officer, (Health Department)
Murshidabad & Ors.
For the petitioner : Mr. Sk. Anwar Ali
For the State : Mr. Soumitra Bandyopadhyay
Mr. Priyabrata Batabyal
Heard on : 18.09.2024
Judgment on : 18.09.2024
PARTHA SARATHI SEN, J.:
1. Learned Advocate for the writ petitioner files his
exception/affidavit-in-opposition against the report filed by the
respondent no. 1. Let the same be taken on record.
2. By filing the instant writ petition the writ petitioner has prayed for
issuance of a writ of mandamus commanding the respondents to
consider the representation of the writ petitioner as submitted on
30.11.2011 with the respondent no. 1 authority for payment of
adequate compensation after acquiring the land of the writ
petitioner which is being used as a pathway for the egress and
ingress of Bhairabtala sub-centre along with other ancillary reliefs.
3. In support of his contention learned Advocate for the writ petitioner
at the very outset draws attention of this Court to the Annexure P1
(page nos. 13 and 14 of the writ petition) being the photocopy of
registered deed of conveyance dated April 25, 1997 whereby and
whereunder the writ petitioner purchased 0.07 decimal of land in
Bata Plot no. 514/1353 in Mouza - Giria in District - Murshidabad
from his vendor one Nanda Kumar Das. It is further submitted
that from page nos. 15 and 16 of the writ petition being a copy of
LR&ROR it would reveal that the name of the writ petitioner was
duly mutated in respect of the aforesaid plot of land. It is
submitted that immediately after purchase of the aforementioned
plot of land the petitioner came to learn that a substantial portion
of his land is being used as a pathway to the aforementioned health
sub-centre and accordingly under cover of his letter dated
15.01.2010 he requested the LA Collector, Murshidabad, the
respondent No. 4 herein and the Pradhan of Giria Gram Panchayat
for taking steps for acquiring the land in question which is being
used as a pathway and for payment of adequate compensation.
4. It is the grievance of the petitioner that his representation dated
15.01.2010 was not considered fabourably by the State authorities
and finding no other alternative he approached this Court by filing
WP 11296(W) of 2010. Drawing attention to page nos. 21 to 24 of
the writ petition it is submitted that by an order dated 04.04.2011
the said writ petition was disposed of with the following direction:
"After having heard the learned Counsel in support of
the Application and the Respondents-State and on
considering the position we feel this is essential a
question of investigation of fact and the Writ Court
would not be in a position to evaluate the same.
Accordingly, the same is disposed of with a direction
upon the Respondent no. 1 to dispose of the
Representation (Annexure - P/3) within a period of
seven days from the date of communication of this order
upon giving opportunity of hearing to the Petitioner and
such other parties he may deem fit and proper and by
way of a speaking order the result of such hearing be
communicated.
Further, it is directed that in the event such acquisition
is found to be not in, order, necessary steps as known to
law, shall be taken without further reference made."
5. In course of his submission, learned Advocate for the writ petitioner
draws attention of this Court to the order dated 17.06.2011 as
passed by LA Collector, Murshidabad. It is submitted that while
passing the said reasoned order the LA Collector has practically
avoided to answer the grievance as made by the writ petitioner and
the LA Collector, Murshidabad has not also come to a specific
finding as to whether any portion of the plot no. 514/1353 in
Mouza - Giria under P.S. - Raghunathganj, District - Murshidabad
is being used as a pathway for the Bhairabtala sub-centre or not.
6. It is thus submitted that it is a fit case for allowing the instant writ
petition directing the respondent authorities to acquire the land of
the writ petitioner and to pay appropriate compensation in
accordance with law with interest and solatium.
7. Per contra, learned Advocate for the State draws attention of this
Court to the report dated 06.05.2024 as filed by the respondent no.
1, i.e., C.M.O.H., Murshidabad. It is submitted on behalf of the
State that from the said report it would reveal that Bhairabtala
sub-centre is situated not on the disputed plot of land and on the
contrary the same is situated on a separate plot of land which was
donated by a group of seven persons in the year 1976. It is further
submitted that the approach road to the said sub-centre is the only
pathway for egress and ingress to the said sub-centre and there is
no other alternative route or pathway for getting entry in the said
sub-centre.
8. While refuting such contention, learned Advocate for the writ
petitioner draws attention of this Court to the order dated
17.06.2011 as passed by LA Collector, Murshidabad as has
annexed to the exception as filed by the writ petitioner today in
Court.
9. After careful consideration of the entire materials as placed before
this Court and after hearing the learned Advocates for the
contending parties it appears that before this Court the writ
petitioner has produced prima facie documents to substantiate that
he has title and possession over 0.07 decimal of land in plot no.
514/1353 by production of copy of the title deed and copy of the
relevant ROR which are admittedly documents of title and
possession respectively.
10. At this juncture if I look to the order dated 17.06.2011 as passed
by LA Collector, Murshidabad it would reveal that the hospital gate
was constructed on the plot no. 514/1353 and a pathway is there
on the self-same plot which is being used by the hospital authority
and local people for egress and ingress to Bhairabtala sub-centre.
This Court further finds that the LA Collector, Murshidabad under
cover its order dated 17.06.2011 came to a finding that the writ
petitioner was never in possession over 9.90 decimal of land over
plot no. 514/1353. The said LA Collector also found that the
health department never forwarded any proposal for acquisition or
requisition of the land on plot no. 514/1353.
11. As rightly pointed out by the learned Advocate for the writ
petitioner that the LA Collector, Murshidabad under cover of its
order dated 17.06.2011 made no venture at all to come to a specific
finding as to whether the pathway as has been used by the hospital
authority and the public at large for egress and ingress to
Bhairabtala sub-centre is situated on the purchased portion of plot
no. 514/1353.
12. In considered view of this Court the said adjudication is very much
necessary in view of the fact that before this Court the writ
petitioner has produced his title deed over 0.07 decimal of land in
respect of the aforementioned plot and he has also produced the
copy of the relevant RSROR to substantiate his possession over the
purchased portion of his land.
13. In the backdrop of the aforementioned discussion this Court thus
set aside the order dated 17.06.2011 as passed by LA Collector,
Murshidabad. This Court thus directs the A.D.M.(L.R.),
Murshidabad to take appropriate steps for coming to a logical
finding as to whether the pathway used for egress and ingress to
Bhairabtala sub-centre and the new gate of the said sub-centre
falls within the purchased portion of land of the writ petitioner in
plot no. 514/1353 in Mouza - Giria.
14. The A.D.M.(L.R.), Murshidabad is further directed to come to a
finding as to whether the gate which has been constructed over the
aforementioned plot of land encroaches the purchased portion of
the writ petitioner in plot no. 514/1353 in Mouza - Giria.
15. The A.D.M.(L.R.), Murshidabad is further directed to make an
enquiry as to whether the vendor of the writ petitioner had at all
any marketable title in respect of the purchased plot of land
measuring about 0.07 decimal in plot no. 514/1353 in Mouza
Giria.
16. The A.D.M.(L.R.), Murshidabad is also directed to come to a logical
finding with regard to the aforementioned three points by making
field enquiry in presence of the petitioner and/or his authorized
representative and also by physical verification of the title deed of
the writ petitioner as well as previous chain deeds in respect of the
subject plot of land and, thereafter, he shall pass a reasoned order
after giving due opportunity of hearing to the writ petitioner and/or
his authorized representative in this regard.
17. It is further ordered that in the event, the A.D.M.(L.R.),
Murshidabad finds that any portion of the plot of land as
purchased by the writ petitioner is either being used as a pathway
for ingress and egress of Bhairabtola sub-centre or for construction
of a gate in front of the said pathway, the District Magistrate cum
Collector, Murshidabad shall take appropriate steps for acquiring
the said portion of the land on behalf of CMOH, Murshidabad in
accordance with law and shall, thereafter, disburse appropriate
compensation to the writ petitioner.
18. It is further directed that the entire process of field verification,
hearing and passing of reasoned order by A.D.M.(L.R.),
Murshidabad shall have to be concluded within a period of three
months from the date of communication of this order.
19. With the aforementioned observations, the instant writ petition
being WPA 22039 of 2012 along with all interim applications is
hereby disposed of.
20. The A.D.M.(L.R.), Murshidabad is directed to act on the server copy
of this order.
21. Urgent photostat certified copies of this order, if applied for, be
supplied to the parties upon compliance with all the necessary
formalities.
(PARTHA SARATHI SEN, J.)
Suvayan Ghosh
Sourav Banerjee
A.R. (Court)s
