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2018 DIGILAW 170 (CAL)

Susmita Naskar v. State of West Bengal

2018-01-25

DEBASISH KAR GUPTA

body2018
JUDGMENT : 1. This writ application is directed against a public notice issued by the Maheshtala Municipality (Annexure P-6 at page 47 to this writ application). By virtue of the impugned notice, the unauthorised encroachments of the Government property lying and situated at Budge Budge Trank Road from Bata More to Zinjira Bazar were directed to be vacated. 2. JUDGMENT : 1. This writ application is directed against a public notice issued by the Maheshtala Municipality (Annexure P-6 at page 47 to this writ application). By virtue of the impugned notice, the unauthorised encroachments of the Government property lying and situated at Budge Budge Trank Road from Bata More to Zinjira Bazar were directed to be vacated. 2. Two writ petitioners filed this writ application for following prayers : “(a) Grant Kind leave be granted to move this application as urgent one dispensing with service of notice as well as service of copy of the writ petition upon the respondents as provided n Rule 26 of Rules relating to an application under Article 226 of the Constitution of India; (b) Issue a Writ in the nature of Mandamus directing the Respondent municipality and/or their men, agents or subordinates and each one of them not to give effect to the impugned notice of eviction (Annexure P-6 herein), which was affixed on the wall of the either side of Budge Budge Trank Road from Bata More towards Zinjira Bazar, Police Station-Maheshtala; (c) Issue a Writ in the nature of Mandamus directing the Respondent especially the respondent no.5 and/or its men, agents or subordinates and each one of them to take necessary steps for providing alternative place to the petitioners for running their business; (d) Issue a Writ in the nature of Mandamus directing the Respondent authorities to pay fair compensation to the petitioners in case of acquisition of the plot being No.66/948, appertaining to Khatian No.1277 of Mouza-Gopalpur, J.L. No.1, District-South 24 Parganas; (e) Issue a writ in the nature of Certiorari directing the respondents and/or their men, agents or subordinates to transmit all relevant records pertaining to this case before the Hon’ble Court so that conscionable justice may be done after perusing the same; (f) Rule NISI in terms of prayers (b), (c), and (d) as above; (g) Pass ad interim order directing the Respondent Municipality and/or their men, agents or subordinates and each one of them not to give effect to the impugned notice of eviction (Annexure P-6 herein), which was affixed on the wal of the either side of Budge Budge Trank Road from Bata More towards Zinjira Bazar, Police Station – Maheshtala, till the disposal of the instant writ petition; (h) Interim order do issue in terms of prayer (g) as above; (i) Any such other or further order or orders, direction or directions as to Your Lordships may deem fit and proper.” 3. This Court is putting questions repeatedly to Mr. Suman Sankar Chattopadhyay, learned Advocate appearing for the petitioners, with regard to maintainability of these prayers pointing out the contradictions in the aforesaid prayers. It is submitted by him that this writ application was taken up by another learned Single Judge and an order was passed on July 24, 2017 directing the District Magistrate, South 24-Parganas, to submit a report in this matter. It is also submitted by him that unauthorised encroachment at the instance of the petitioners has already been removed but the contention of the report prepared by the above District Magistrate is not known to him. In the event a true copy of the above report is handed over to him, he will be at liberty to deal with the same by way of filing an application taking exception to the above report and to file supplementary affidavit to this writ application for consideration of the Court so far as the status of the petitioners are concerned. However, the queries which fell from the Court remain unanswered due to the above submissions made by Mr. Chattopadhyay. 4. Be that as it may, while deciding the issues involved in an application filed under Article 226 of the Constitution of India, in my opinion, the subject matter of challenge and the prayers made on the basis of the pleading of the petitioners are relevant for deciding the issue at the final stage. 5. So far as the notice impugned to this writ application is concerned, I do not find any illegality/impropriety of the same because by virtue of the impugned notice the respondent municipality asked the encroachers of the Government property to vacate such encroachment according to the demarcation made by the authorities. The above notice does not contain the name of either of the petitioners. Therefore, the question of any grievance in respect of that notice or setting aside of the same standing in the way of taking steps by the local authorities in the greater interest of the public does not arise at all. 6. Now coming to the prayers made in the writ application, I find that prayer (a) relates to dispensing with the formalities of serving notice. 7. So far as the prayer (b) is concerned, the prayer is made for setting aside the notice impugned to this writ application. It has already been dealt with hereinabove. 6. Now coming to the prayers made in the writ application, I find that prayer (a) relates to dispensing with the formalities of serving notice. 7. So far as the prayer (b) is concerned, the prayer is made for setting aside the notice impugned to this writ application. It has already been dealt with hereinabove. 8. With regard to prayer (c), I find that it is by way of an alternative prayer for providing alternative space to the petitioners for running their business in the event there is no encroachment of the Government property by the petitioners. The question of removing them from the above property does not arise. Therefore, the question of alternative accommodation also does not arise. Necessary to point out that no specific allegation is made against the respondent municipality for its illegal action to remove the petitioners from a property which have been legally owned and possessed by them. 9. With regard to prayer (d), I find that with reference to the number of plot claimed to be owned and possessed by the petitioners a prayer is made for granting fair compensation to them in case of acquisition of the above plot. It is as vague as the earlier prayers. 10. On one hand the petitioners are praying for alternative accommodation on the other hand they are praying for compensation in case of acquisition of their property which has been legally owned and possessed by them. In the event they are in possession of their property and running their shops which does not belong to the State Government, the notice impugned to this writ application has no bearing on them. 11. It will not be out of context to mention here that no material is annexed to this writ application showing that the property on which the petitioners have been running their business are owned and possessed by them on the strength of valid documents. 12. The other prayers do not require further consideration of the Court. 13. It will not be out of context to mention that a report has already been filed by the District Magistrate, South 24-Parganas. Let it be kept on record but it does not require any consideration to give indulgence to the petitioners for dealing with the process of vacating the Government land by issuing impugned notice. 14. 13. It will not be out of context to mention that a report has already been filed by the District Magistrate, South 24-Parganas. Let it be kept on record but it does not require any consideration to give indulgence to the petitioners for dealing with the process of vacating the Government land by issuing impugned notice. 14. Since a considerable time is consumed to arrive at a conclusion that this writ application is not only misconceived but it is an abuse of process of law for the purpose of standing in the way of the public interest and the petitioners have not come up before this Court with clean hands, this writ application stands dismissed. 15. There will be a costs of Rs.5,000/- to be paid by the petitioners and the same should be shared by the learned Advocates appearing for the State-respondents and the respondent-municipality equally. 16. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.