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2008 DIGILAW 781 (CAL)

Biproarshi Guha v. State of West Bengal

2008-08-01

JAYANTA KUMAR BISWAS

body2008
JUDGMENT The petitioner has filed this writ petition dated May 15, 2007 seeking a mandamus directing the police to co-operate with the Kolkata Municipal Corporation for carrying into effect and enforcing the demolition order of the special officer (building) of the Corporation dated May 29, 2004 made under Section 400(1) of the Kolkata Municipal Corporation Act, 1980. 2. On the basis of complaint of the owners of the lands, particulars whereof have been given in the writ petition, dated June 30, 2000 the competent authority of the Corporation issued notice under Section 400(1) dated February 12, 2004 initiating the demolition proceedings. The allegation was that on the lands the twelfth and thirteenth respondents, Garia Sabuj Dal, a club registered under the Societies Registration Act, 1963 and Secretary, Garia Sabuj Dal respectively, unauthorisedly erected structures. After making necessary inquiry, recording evidence, and hearing the parties, in the proceedings the special officer (building) of the Corporation made the final order dated May 29, 2004 holding that the twelfth and the thirteenth respondents erected unauthorized constructions, and that they were liable to demolish them. The special officer ordered that if the twelfth and thirteenth respondents failed to demolish the structures, then they would be demolished by the Corporation at the twelfth and thirteenth respondents expense. Feeling aggrieved the twelfth and thirteenth respondents lodged an appeal with the building tribunal of the Corporation that dismissed the appeal on contest by order dated June 28, 2005. Questioning the orders, the twelfth and thirteenth respondents moved this Court by filing W.P. No. 18622 (W) of 2005 that was dismissed by the Single Bench by order dated December 6, 2006. The appeal preferred against the Single Bench decision was dismissed by their Lordships of the Division Bench by order dated August 6, 2007; and the special leave petition filed there against before the Apex Court was summarily dismissed by order dated May 14, 2008. 3. It has been stated in the writ petition that the Corporation that started demolishing the structures could not complete the work because of violent resistance put up by the twelfth and thirteenth respondents and the people engaged by them. It has further been stated that pointing out the situation the Corporation requested police to extend necessary cooperation, but police failed and neglected to take any steps in the matter. It has further been stated that pointing out the situation the Corporation requested police to extend necessary cooperation, but police failed and neglected to take any steps in the matter. The twelfth and thirteenth respondents have filed an opposition alleging that the petitioner has no locus standi to move the writ petition, since in view of order made in proceedings initiated by the competent authority under provisions of the Urban Land (Ceiling and Regulation) Act, 1976 the lands in question stood vested in the State Government. By filing a reply the petitioner has refuted the allegation by saying that only proceedings were initiated by the competent authority under provisions of the Urban Land (Ceiling and Regulation) Act, 1976. It is his specific case that no order vesting the lands in question in the Government has been made by the competent authority or by any other authority. 4. Counsel for the Corporation has said that his client is ready and willing to enforce the order of the special officer (building) dated May 29, 2004. Counsel for the State has said that his client shall take all necessary steps for extending necessary co-operation to the Corporation for carrying into effect and enforcing the order of the special officer (building) that, as a matter fact, subsequently merged into the orders made by the building tribunal, and the Single Bench and Division Bench of this Court. No one has appeared today for the twelfth and thirteenth respondents. It is necessary to record how they have been contesting the case. 5. By order dated January 10, 2008 my Lord the Chief Justice was pleased to assign the case to me. I took it up for hearing on January 14, 2008 when their counsel submitted that their special leave petition was awaiting hearing. I adjourned hearing and directed the matter to go out of list. After the special leave petition was dismissed the case was again listed and taken up for hearing on July 4, 2008 when it was submitted that their counsel was engaged in another Court. On July 11, 2008 the case was again taken up for hearing, no one on their behalf was present. After hearing the appearing parties, I started dictating the judgment, and while I was concluding the judgment their counsel appeared and wanted to file opposition; the prayer was allowed ordering costs. On July 11, 2008 the case was again taken up for hearing, no one on their behalf was present. After hearing the appearing parties, I started dictating the judgment, and while I was concluding the judgment their counsel appeared and wanted to file opposition; the prayer was allowed ordering costs. On July 25, 2008 the case was again taken up for hearing, and after counsel for all the other parties concluded their arguments, their counsel commenced his arguments. Faced with the situation that nothing was there to show vesting of the lands in the Government, counsel wanted adjournment for better preparation; the prayer was allowed. Today again there is none for the two respondents; and I find no reason to adjourn hearing. 6. The first question is whether the petitioner is entitled to take out this writ petition. I do not find any reason to accept the contention that the lands in question having stood vested in the Government, the petitioner is not entitled to seek enforcement of the order of the special officer (building) of the Corporation. From the materials produced by the twelfth and thirteenth respondents and the petitioner, it is clear that the competent authority has only initiated proceedings under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, and no order under Section 10 vesting the lands in question in the State has been made either by the competent authority or by any other authority. This being the position, I do not see why it should be said that the petitioner has no locus standi to take out the writ petition. It is not disputed that the demolition proceedings were initiated at the instance of the petitioner. Today after he succeeded in all the forums, in my opinion, the twelfth and thirteenth respondents who contested all the previous proceedings are not entitled to say that the petitioner has no locus standi to take out the present writ petition seeking enforcement of the order of the special officer (building) directing demolition of the unauthorized structures erected by the twelfth and thirteenth respondents. I, therefore, hold that the petitioner is quite entitled to take out the present writ petition seeking enforcement of the order of the special officer (building). 7. I, therefore, hold that the petitioner is quite entitled to take out the present writ petition seeking enforcement of the order of the special officer (building). 7. The next question is whether police are under any statutory obligation to co-operate with and assist the Corporation for carrying into effect and enforcing the order of the special officer (building). As rightly submitted by counsel for the petitioner, the provisions of the Kolkata Municipal Corporation Act, 1980, Section 588, provide the complete answer to the question. Section 588 reads as follows:- "588. Co-operation of the police. - (1) The Inspector-General of Police, West Bengal, the Commissioner of Police, Kolkata and their subordinates shall : (a) Co-operate with the Corporation for carrying into effect and enforcing the provisions of this Act and for maintaining good order in and outside Kolkata, and (b) Assist the Corporation or the Municipal Commissioner or any other officer or employee of the Corporation in carrying out any order made by a Magistrate under this Act. (2) It shall be the duty of every police-officer in or outside Kolkata- (i) To communicate without delay to the Municipal Commissioner or any other officer of the Corporation any information which he receives in respect of any design to commit or any commission of any offence under this Act or the rules or the regulations made thereunder, and (ii) To assist the Municipal Commissioner or any other officer or employee of the Corporation reasonably demanding his aid for the lawful exercise of any power vesting in the Corporation or the Municipal Commissioner or such officer or employee under this Act or the rules or the regulations made thereunder. (3) Any officer or employee of the Corporation may, when empowered by a general or special order of the Inspector-General of Police, West Bengal or the Commissioner of Police, Kolkata, on the recommendation of the Corporation in that behalf, exercise the powers of a police-officer for such of the purposes of this Act as may be specified in such order." 8. It is therefore apparent that police are under a statutory obligation to co-operate with the Corporation for carrying into effect and enforcing the provisions of the Kolkata Municipal Corporation Act, 1980, and a statutory duty to assist the commissioner, officer and employee of the Corporation, reasonably demanding their aid, for the lawful exercise of power vested in them. It is therefore apparent that police are under a statutory obligation to co-operate with the Corporation for carrying into effect and enforcing the provisions of the Kolkata Municipal Corporation Act, 1980, and a statutory duty to assist the commissioner, officer and employee of the Corporation, reasonably demanding their aid, for the lawful exercise of power vested in them. If the order made by the special officer (building) cannot be enforced for want of their co-operation and assistance, needless to say that it will amount to a failure in the discharge of their statutory duty. The Corporation has requested police to give necessary assistance so that the unauthorized structures might be demolished. There is nothing to show that in response to the request, police gave necessary assistance to the Corporation. In my opinion, the petitioner has made out a case for issuing a mandamus commanding police to give necessary assistance to the Corporation so that the order of the special officer (building) may be enforced and executed at once. 9. For these reasons, I allow the writ petition and issue a mandamus directing the Inspector General of Police, West Bengal, the Commissioner of Police, Kolkata and their subordinates to give reasonable co-operation and assistance to the commissioner, officers and employees of the Corporation for enforcing and executing the order of the special officer (building) dated May 29, 2004. The co-operation and assistance shall be given by police within three days from the date the competent person of the Corporation calls upon them in writing to give necessary assistance for demolishing the unauthorized structures in question. The authority or officer or employee of the Corporation shall demand the co-operation and assistance within two days from the date of communication of this order to the commissioner. There shall be no order for costs. 10. At this stage Ms. Chhabi Chakraborty, Advocate, submits that Mr. Mukhopadhyay, Counsel for the twelfth and thirteenth respondents has not come to Court. Nothing is said why the Advocate-on-Record for the two respondents has chosen to stay away. On the facts stated hereinbefore, I find no reason to recall my judgment and order already dictated after hearing the appearing parties and considering the affidavit filed by the two respondents. Mukhopadhyay, Counsel for the twelfth and thirteenth respondents has not come to Court. Nothing is said why the Advocate-on-Record for the two respondents has chosen to stay away. On the facts stated hereinbefore, I find no reason to recall my judgment and order already dictated after hearing the appearing parties and considering the affidavit filed by the two respondents. Urgent certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.