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2015 DIGILAW 971 (CAL)

Lina Datta v. Sukumar Bera

2015-12-17

JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. Youth Club (Naktala) is trying to reopen the writ petition being W.P. No. 12043 of 2013 which was disposed of by this Court as back as on 4th June, 2013 by filing three applications viz, (1) An application for appropriate order, (2) An application under Section 5 of the Limitation Act and (iii) another application seeking leave to sue the Special Officer appointed by this Court on 18th September, 2015, in a contempt proceeding being W.P.C.R.C. 328(W) of 2015 arising out of the said writ petition. 2. For proper appreciation of those three applications filed by the said club, I feel that the background of this litigation should be set out. Accordingly, I give short narration of the background of this litigation leading to filing of these three applications by the stranger club. 3. Admittedly, the writ petitioner's land measuring about 0.7071 acres excluding two shop rooms lying in various plots in mouza Naktala P.S. Jadavpur being municipal holding no. 253C N.S.C. Bose Road, Kolkata, presently under P.S. Netaji Nagar was requisitioned by the State Government under the West Bengal Land Requisitioned and Acquisition Act, 1948 on 28th of November, 1972. Possession of such requisition land of the petitioner was taken over by the State Government on 28th November 1972. On the very same day i.e. on 28th November 1972 the possession of the said land was delivered to the Kolkata Metropolitan Water and Sanitation Authority. 4. Mr. A.K. Roychowdhury, Assistant Engineer, Division VIII, Kolkata Metropolitan Water and Sanitation Authority received the delivery of possession of the said land from the land acquisition officer by acknowledging the receipt of delivery of possession of the said land, on the possession certificate. Since then the said Kolkata Metropolitan Water and Sanitation Authority is in possession. 5. Though the possession of the writ petitioner's said land was taken over under the Said Act on 28th of November 1972, the State Government has not paid any rent compensation to the petitioner. No step was also taken by the State Government subsequently to acquire the petitioner's said land during the validity of the said act. The said act became inoperative due to efflux of time w.e.f. 1st April 1997 and as such there was no possibility of acquiring the said land of the petitioner under the provision of the said Act, after 1st April, 1997. 6. The said act became inoperative due to efflux of time w.e.f. 1st April 1997 and as such there was no possibility of acquiring the said land of the petitioner under the provision of the said Act, after 1st April, 1997. 6. In course of the hearing of the writ petition Mr. Mahato learned advocate appearing for the State respondents informed the Court that his client has already taken steps for acquiring the said land of the petitioner by issuing notice under Section 9(3A) of the Land Acquisition Act. He prayed for six months time for completing the acquisition proceeding. 7. Though this Court was informed by Mr. Dutta learned senior counsel appearing for the writ petitioner that major part of the requisitioned land remains unutilized but still then after considering the submissions of Mr. Mahato that the State Government is interested in acquiring the said land of the petitioner by applying the provision contained in Section 9(3A) of the land Acquisition Act this Court passed the following direction in the said writ petition on 04th of June, 2013;- "In view of such submission of the learned Counsel of the parties, this court is unable to ascertain the exact requirement of the State and as such, the State Government is directed to take a decision as to whether the entire requisitioned land of the petitioner or part of it, is required by the Government and in the event it is found that the entire land of the petitioner is required by the Government, the State Government will issue notice under Section 9(3A) of the Land Acquisition Act as early as possible and complete the said proceeding positively within a period of six months from the date of communication of this order. 8. It is made clear that in the event the Government decides to utilise only a part of such requisitioned land, then the rest of the land which the Government does not require, should be released and possession thereof should be given to the petitioner immediately thereafter. Such exercise should be completed within four weeks from the date of communication of this order and the acquisition proceeding for the required land should be completed by issuing notice under Section 9(3A) of the said Act within the period as mentioned herein above. 9. Such exercise should be completed within four weeks from the date of communication of this order and the acquisition proceeding for the required land should be completed by issuing notice under Section 9(3A) of the said Act within the period as mentioned herein above. 9. Needless to mention here that since the State respondents deprived the petitioner of her enjoyment of the land in question, the State respondents is directed to pay rent compensation in respect of the entire requisitioned land at the statutory rate together with interest 6% per annum for the period from 28th November, 1972 till 31st March, 1997 and will pay damages for wrongful use and occupation of the entire requisitioned land at the market rate together with interest 6% per annum thereon for the period from 1st April, 1997 till the date of issuance of notification under Section 9(3A) of the Land Acquisition Act. 10. Such payment should be made along with payment of the awarded compensation to the petitioner." 11. Despite such directions were given by this Court, no effective step was taken by the State Government for acquiring the land of the writ petitioner. No notice was issued under Section 9(3A)of the Land Acquisition Act for acquiring the land of the writ petitioner. Thereafter no further proceeding was initiated by the State Government under any other provision or any other law for acquiring the land of the writ petitioner. The direction regarding the payment of rent compensation and/or damages given by this Court in the said writ petition on 04th of June 2013, was also not complied with by the State Government. 12. Under such circumstances the writ petitioner filed a contempt application being W.P.C.R.C. 328(W) of 2015. In course of hearing of the said contempt proceeding this Court was informed by the learned counsel of Kolkata Metropolitan Water and Sanitation Authority that a part of the said requisitioned property measuring about 0.2 acres of land has been utilised by the Kolkata Metropolitan Water and Sanitation Authority for construction of the second lift station in connection with Tollygunj Sewerage Scheme. 13. 13. Since the major part of the petitioner's land remains unutilized for such a long period and the legal authority of the requiring bodies to retain possession of the said land in question, came to an end w.e.f. 1st April, 1997, this Court after taking note of the fact that the State Government has not taken any further step for acquiring the land of the petitioner under Section 9(3A) of the Land Acquisition Act, directed the 1st Land Acquisition Collector, Kolkata to recover the un-utilized part of the land of the writ petitioner, from the person whoever is found to be in possession thereof and hand over the physical possession thereof to the writ petitioner positively on 5th October, 2015 at 12 o'clock in the presence of the Special Officer of this Court after measuring the recovered land and also after preparing a map thereof. Mr. R.S. Dutta, Advocate of this Court was appointed as Special Officer in whose presence the actual physical possession of the unutilized land was directed to be made over by the concerned land acquisition collector to the writ petitioner. This Court was also informed by Mr. Mahato, learned advocate for the respondent that a sum of Rs.50,37,718/- had been assessed by the Land Acquisition Collector toward rent compensation for the period from 28.11.1972 to 30.11.2013. This Court has also worked out a modality for realisation of the said assessed rent compensation by the learned Special Officer so that the assessed rent compensation can be paid to the writ petitioner. 14. Pursuant to the aforesaid direction passed by this Court in the said contempt proceeding on 18.09.2015, the land acquisition collector was present at the site on 05.10.2015 but the unutilized land could not be delivered to the petitioner by the said land acquisition collector as he apprehended resistance from the unauthorized occupiers and the police personnel present there, on that date, was insufficient to tackle the apprehended breach of peace that might have occurred, in case force should have been applied to remove the unauthorized occupants therefrom. 15. 15. Though the land acquisition collector remained present to implement the said order of this Court, neither the representative of the Kolkata Metropolitan Water and Sanitation Authority nor any representative of the Kolkata Municipal Corporation nor any representative of Kolkata Metropolitan Development Authority was present at the site on the appointed date to assist the Land Acquisition Collector to identify the portion of the unutilized land which may be returned to the petitioner. The learned special officer who was also present at the site on the appointed date, submitted a report before this Court mentioning therein that the portion of the said premises is in possession of the unauthorized occupiers. 16. Though possession of the unutilized portion of the petitioner's land could not be handed over to the petitioner on the said date but the learned advocate appearing for the State Government informed this Court on 9th October, 2015 that his client namely the State Authority will hand over possession of the land to the petitioner in as is where is condition. Such suggestion of the State Government to hand over the possession of the land to the petitioner in as is where is condition" was not accepted by this Court and it is only at that juncture it was submitted by Mr. Mahato learned advocate that since the major portion of the said land is under occupation of many illegal occupiers and situation in the said locality was found to be very much tensed when the land acquisition collector went there on 05.10.2015 to deliver possession of the unutilized land of the petitioner, it will not be possible for the State authority to deliver vacant possession to the petitioner unless sufficient police protection is given by the Court. 17. Considering such submission of Mr. Mahato, this Court on 09.10.2015, directed the 1st Land Acquisition Collector, Calcutta and the representatives of Kolkata Metropolitan Water and Sanitation Authority, Kolkata Municipal Corporation and Kolkata Metropolitan Development Authority to remain present at the site on 18th December 2015 at 11 AM when the Land Acquisition Collector is required to deliver the vacant and peaceful possession of the land in question lying at premises no. 253C N.S.C. Bose Road, Kolkata to the petitioner and/or her authorised representative in the presence of the Special Officer who was also directed to be present at the site on the said date at 11 AM to see and report as to whether vacant possession of the land in question is delivered to the petitioner or not. 18. The Commissioner of Police Calcutta was directed to remain personally present at the site on the appointed date and render all necessary assistance and protection to the learned Special Officer and the Government Officials as mentioned above, so that the vacant and peaceful possession of the land in question can be delivered to the petitioner by the State Authority on the said date after removing the squatters therefrom. 19. The 1st Land Acquisition Collector, Calcutta was also directed to hand over an account payee Cheque for a sum of Rs.50,37,718/- to be drawn in the name of the petitioner namely, Lina Dutta to the learned advocate-on-record of the petitioner on 16.10.2015 by 04.00 PM. This Court is informed by Mr. Dutta learned senior counsel appearing for the writ petitioner that such payment was made to his client. 20. Tomorrow is the date for handing over possession of the unutilized land of the petitioner by the 1st Land Acquisition Collector, Calcutta to the petitioner. 21. In these set of facts, the stranger applicant namely Youth Club (Naktala) has filed the aforesaid three applications on 11.12.2015. Let me now deal with the merit of those three applications one by one in the facts of the aforesaid case. In fact reliefs claimed in all these three applications and the statements made therein are almost similar to each other. 22. In Re : C.A.N. No. 1186 of 2015 In this application the applicant has prayed for leave to sue the Special Officer appointed by this Court in W.P.C.R.C. 328(W) of 2015. Incidentally a prayer for recalling of the order passed by this Court on 4th June, 2013 in W.P. 12043(W) of 2013 and the orders dated 18.09.2015 and 09.10.2015 both passed in W.P.C.R.C. 328(W) of 2015, is also made in the said application and pending disposal of the said application, the applicant has prayed for stay of operation of those three orders passed in the writ and/or in the contempt proceeding as mentioned. 23. 23. The sum and substance of the case made out by the said applicant in the said application is that the said club which got itself registered sometime in 1981 started possessing the said land of the petitioner since 1972, and the said club has organised several social beneficial activities on the said land and on some occasion different other clubs sought for their permission for holding various functions and/or sports events etc. on the said land. It was further alleged that even the Superintendent Engineer, Ganga Action Plan C.M.W. & S.A. approached the said club with a proposal for setting up of a lifting station under Ganga Action Plan and after holding a discussion at the Site on 26th February, 1993 the following decision was taken;- "Minutes of Discussion held at site on 26.2.'93. 1. It was decided that the said lifting station will be constructed at the South-West corner of the premises no. 253C, NSC Bose Road, Tollygunge. The requirement of the area shall be about 305(three point five) cottas (45ft. East-west X 55 ft. North-South). The Station will be protected by constructing a boundary wall enclosing the said area of 305 cottas. A 15ft. wide road will be constructed along the Southern boundary of the premises for the entrance to the lifting station. This road will also be used for entrance to the ground and the club house abutting the road. 2. The underground pipe lines will be laid across the ground North to South from NSC Bose Road to the proposed lifting Station. 3. CMW&SA will also undertake necessary steps to construct fencing of the play ground on the Northern and Eastern periphery at their cost and undertake restoration activities of the play ground, after completion of the works stated in para 2 above. 4. Plan of the area with proposed works is enclosed." 24. Mr. Chatterjee, learned senior counsel appearing for the applicant has drawn my attention to those documents including the minutes of discussion held at the site on 26.02.1993 as recorded in the letter of the Superintendent Engineer, Ganga Action Plan CMW&SA to impress upon me that his client has acquired title in the suit property by such long uninterrupted possession since 1972. An extract from the inspection book of the Kolkata Municipal Corporation relating to the said premises has also been produced before me by Mr. An extract from the inspection book of the Kolkata Municipal Corporation relating to the said premises has also been produced before me by Mr. Chatterjee to show that the name of the said club also been recorded in the inspection book as an occupier of the premises no. 253C N.S.C. Bose Road, Kolkata. By referring to the provision containing in Section 27 of the Limitation Act Mr. Chatterjee has submitted that by such long and uninterrupted possession of the said land, the applicant club has acquired title in the suit property by adverse possession. He further submits that the disputed question of fact relating to the rival claims of the parties regarding title to the property cannot be decided by the Writ Court and as such his client intends to file a suit before the appropriate forum for seeking appropriate relief. He further submits that since Special Officer has been appointed by this Court in the contempt proceeding, his client has come before this court to seek leave to sue Special Officer before the appropriate forum, for seeking relief. 25. Let me now consider as to whether any leave is required to be granted for filing a suit which the applicant is now contemplating. I have already indicated above that Special Officer has not been appointed by this Court to recover possession of the land in question from the State Authority or from the other occupiers thereof and direction was not passed upon the Special Officer to make over possession of the said land to the writ petitioner after recovering either the State Authority or the occupiers therefrom. Direction was given upon the 1st Land Acquisition Collector, Kolkata who received possession of the petitioner's land from the petitioner pursuant to the requisition of the petitioner's land by the Government, to make over possession of the unutilized portion of the petitioner's land to the petitioner on 18.12.2015. Direction was given upon the 1st Land Acquisition Collector, Kolkata who received possession of the petitioner's land from the petitioner pursuant to the requisition of the petitioner's land by the Government, to make over possession of the unutilized portion of the petitioner's land to the petitioner on 18.12.2015. Since possession of the petitioner's land could not be delivered by the Land Acquisition Collector on the previous day because of the apprehended breach of peace, this Court, on the prayer of the State Authority, directed the Commissioner of Police, Kolkata to be present at the site on the appointed date and time to render all necessary assistance and protection to the Government officials and the Special Officer, So that the vacant and peaceful possession of the land in question can be delivered to the petitioner by the State Authority on the appointed date after removing the squatters therefrom. 26. Since the Special Officer was not appointed either for the purpose of recovering possession from the State Authority and/or the squatters or for delivering the possession thereof to the writ petitioner and further since this Special Officer has not taken possession of the land in question and further since the land in question is not in the custody of the Special Officer, I feel that the leave which is sought for by the applicant to sue the Special Officer need not be granted. 27. As a matter of fact I have not come across any case wherein such leave was granted by the Court to sue this Special Officer who is not the custodian of the disputed property on behalf of the Court. In this regard reference may be made to the case of Everest Coal Company (P) Ltd. Co. v. State of Bihar and Ors., reported in AIR 1977 SC 2304 wherefrom it will be apparent that such leave is necessary to sue the receiver only when the property comes under the Court's custody through the receiver being an officer or an agent of the Court. v. State of Bihar and Ors., reported in AIR 1977 SC 2304 wherefrom it will be apparent that such leave is necessary to sue the receiver only when the property comes under the Court's custody through the receiver being an officer or an agent of the Court. Since the property is not in the custody of the Special Officer and further since the Special Officer was appointed only for the purpose of witnessing the delivery of possession of the said land by the State Authority to the writ petitioner, this Court is of the considered view that no such leave to file a suit is necessary even if the applicant is advised to file a suit for establishing its title in the property. Hence the prayer for grant of leave to sue the Special Officer is refused. 28. Let me now consider the other reliefs which the applicant has claimed by way of recalling the aforesaid three orders passed by this Court either in the writ petition and/or in the contempt applicant. 29. The set of facts in which the writ petition was filed has already been mentioned above. The State Government has took over possession of the petitioner's land on the strength of a requisition order issued by the State Government. Now the State Government has decided to return a part of the petitioner's property which still remains unutilized. In these set of facts, I feel the presence of the applicant, is not at all necessary. In my view reopening of the issues involved in writ petition at the instance of the club, cannot be allowed as adjudication of a third party's claim for title in the said property is a foreign consideration so far as the writ petition is concerned. The applicant is trying to project its right by of acquisition of title by adverse possession before this Court. No Court has yet declared its title in the suit property by of adverse possession. Now doubt, the applicant has disclosed several documents showing its possession in part of the petitioner's property but mere possession of any length of time without proof of any animus to set up a claim of right in respect of the petitioner's property is not sufficient to establish its claim for acquisition of title by adverse possession. I have also considered the documents which were disclosed by the applicant in this application. I have also considered the documents which were disclosed by the applicant in this application. None of these documents shows that the applicant is possessing the said land as owner thereof. The extract of inspection book of the Kolkata Municipal Corporation which is produced before me by Mr. Chatterjee, learned senior counsel also shows that the name of Smt. Devi Rani Chandra trustee of Sri Harendra Gopa Mitra is recorded as the owner of the suit property. In fact the writ petitioner is claiming interest through the said Trust. The name of the applicant namely, Youth Club is recorded as the "occupier" of the said property. Despite having knowledge of the fact that the name of the trust is recorded as the owner of the suit property, the applicant has not taken any step to record its name as the owner of the suit property after deleting the name of the owners therefrom. No other document is forthcoming from the applicants to show that the applicant is claiming any hostile title in the suit property to the knowledge of the writ petitioner. As such this Court prima facie feels that on the fact of such pleadings, this Court, cannot recorded its satisfaction about the applicant's claim for acquisition of title by adverse possession. Hence the applicant's prayer for recall of the three orders passed by this Court either in the writ petition or in the contempt proceeding, stands, dismissed. Further since the application is disposed of, the other relief which the applicant has claimed by of stay of operation of these ... orders, pending disposal of the instant applicant becomes infructuous. As such those reliefs of the applicant cannot be allowed. 30. The other two applications being C.A.N. No. 11887 of 2015 & C.A.N. No. 11997 of 2015 were also filed by the applicant claiming almost identical reliefs; of course under different heads and/or captions. After considering the merit of those applications, I feel that those applications also deserve no merit for consideration. As such those applications are also dismissed. All the three applications filed in connection with this writ petition and the contempt proceeding, stand disposed. 31. Let the extract of the inspection book of the Kolkata Municipal Corporation which is submitted by Mr. Chatterjee be kept with the record and the same do form part of the record. 32. As such those applications are also dismissed. All the three applications filed in connection with this writ petition and the contempt proceeding, stand disposed. 31. Let the extract of the inspection book of the Kolkata Municipal Corporation which is submitted by Mr. Chatterjee be kept with the record and the same do form part of the record. 32. It is made clear that since this applications are disposed of without inviting any affidavit of any of the parties, the allegation made by the applicants in these applications are deemed to be not admitted by the parties to the writ petition. 33. In view of the dismissal of these applications I make it clear that the time schedule which was fixed earlier for making over possession of the suit property by the 1st Land Acquisition Collector to the writ petitioner will remain unchanged. A Photostat plain copy of this order duly countersigned by the Assistant Registrar (Court), be handed over to the respective parties on usual undertakings. Applications dismissed.