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2019 DIGILAW 556 (CAL)

Asoke Sen v. Kolkata Municipal Corporation

2019-05-02

SAMBUDDHA CHAKRABARTI

body2019
JUDGMENT : 1. The case of the petitioners in short is that they are the owners of the land at 89K, Prince Golam Hossain Shah Road, Kolkata 700 032. By virtue of a deed of gift and a probated Will they have become the exclusive and absolute owners of the property. Their names have also been mutated by the Kolkata Municipal Corporation (the Corporation, for short). 2. In response to a query made under the Right to Information Act, the corporation authorities by a reply, dated April 23, 2011 informed the petitioners that the land belonging to them was butted on the north by Bikramgarh Jheel. The corporation authorities informed that on inspection it was found that there was a vacant land on the eastern side of the petitioners' land which was bounded partially on its eastern and western sides. 3. The allegation of the petitioners is that the respondents nos. 9 and 10 sought to encroach upon the land of the petitioners in the guise of doing beatification of the said Jheel for which the petitioners filed a suit in the court of the learned Civil Judge (Junior Division) at Alipore against the respondent nos. 9 and 10 herein for a declaration that the defendants in the suit were not entitled to disturb the possession of the plaintiffs in respect of the concerned premises or to damage or break the brick-bound perimeter between the plaintiffs' suit premises and Bikramgarh Jheel and for other reliefs. On an application for temporary injunction being moved the learned Civil Judge by an order, dated April 30, 2012 directed maintenance of status quo by the parties. Subsequently, the interim order was extended from time to time. 4. The petitioners have further alleged that the corporation authorities demolished the boundary wall and the bamboo fencing that was raised for protection of the property. They also excavated soil from at least 80% of the plot. The petitioners made a representation to the respondents on May 13, 2015 requesting them to take appropriate steps for cleaning and reinstating the soil of the excavated plot back to its original stage and to replace the broken boundary wall and barricade. The said representation yielded no result. The petitioners then filed an application under the Right to Information Act which was replied by the corporation. The said representation yielded no result. The petitioners then filed an application under the Right to Information Act which was replied by the corporation. The petitioners have argued that these replies will make it clear that the petitioners' land had not been acquired nor any acquisition proceeding is pending in respect of the same. 5. The further case of the petitioners is that since the private respondents claimed that the land of the petitioners was converted into the Jheel the petitioner no. 1 again sought for some information from the corporation authorities and from the information furnished by the corporation it appeared that the location of the land was not known to the department and the location guideline of Bikramgarh Jheel was based on old records of survey. The old records showed that no part of the land of the petitioners was a part of the Jheel. 6. Subsequently, the petitioners made an application before the Additional Land Acquisition Officer to enquire from him whether the land of the petitioners was acquired by the State. In reply, a letter was written by the said authority to the first Land Acquisition Collector requesting him to take appropriate steps for furnishing information to the petitioners. However, it was mentioned in the said letter that the old register was verified and it was found that the land in question had not been entered into the same. The petitioner no. 1 sought for the drawing along with evidence that the land in question was included in the concerned Jheel. This was followed by successive letters written by the petitioners to various authorities seeking information regarding the status of acquisition of their land. The information not having been received by the petitioner no. 1 he filed an appeal to the appellate authority which also produced no result. 7. The petitioners have alleged that the respondents have no right to enter into the premises of the petitioners which had not been acquired by the municipal authorities. But the private respondents and the municipal authorities have forcefully entered into the premises of the petitioners without any authority of law. The property of the petitioners till date is recorded as a land and no proceeding had been initiated for conversion of the property to water body. To that effect they have not received any notice from the municipal authorities. The property of the petitioners till date is recorded as a land and no proceeding had been initiated for conversion of the property to water body. To that effect they have not received any notice from the municipal authorities. Before passing any order of conversion of the land of the petitioners into a water body the respondents have to serve a notice of show-cause to the petitioners to give them an opportunity of being heard. The petitioners have not received any notice nor have they received any order for such conversion. On the contrary, the action taken by the respondents in forcefully entering into the land of the petitioners by breaking the boundary wall and excavating soil from the land of the petitioners, was in violation of the principles of natural justice. 8. The petitioners have inter alia prayed for a writ in the nature of mandamus commanding the respondents to recall the purported order of conversion of the land of the petitioners into a water body, if any, a writ in the nature of mandamus commanding the respondents to restore the land of the petitioners to its original condition by re-erecting the boundary wall and refilling the soil that had been excavated from the lands of the petitioners. The petitioners have also prayed for a direction upon the municipal authorities to take appropriate steps against the private respondents and also for other relief’s. 9. Although liberty was given to the respondents to file their respective affidavits-in-opposition, no such affidavit had been filed by any of the respondents. However, Ms. Ghosh, the learned Advocate for the corporation verbally submitted that the corporation has no information about the ownership of the land in question and it was difficult for them to ascertain the ownership as the concerned plot was not encircled by the boundary wall. There is no record in the concerned department of the corporation about the acquisition of the property and the authorities have also not asserted whether the property was acquired by the corporation authorities or the Kolkata Improvement Trust. Since the land was found vacant attached to the Bikramgarh Jheel they had encroached on the same. Ms. Ghosh submitted that the corporation would have to ascertain whether the land in question had been acquired by the corporation authorities or by the Kolkata Improvement Trust. 10. Thus the allegations made in the writ petition go entirely uncontroverted. Since the land was found vacant attached to the Bikramgarh Jheel they had encroached on the same. Ms. Ghosh submitted that the corporation would have to ascertain whether the land in question had been acquired by the corporation authorities or by the Kolkata Improvement Trust. 10. Thus the allegations made in the writ petition go entirely uncontroverted. In about two years' time, the respondents have not filed any affidavit and the verbal submission of Ms. Ghosh which had been taken on record as the corporation had not filed any affidavit does not throw any light on the dispute raised in the writ petition. The allegation that the corporation authorities had encroached upon the land of the petitioners and demolished the boundary wall as well as the fencing have not been controverted in any manner. 11. The learned Advocate for the petitioners argued and I also quite agree that if the allegations made in the writ petition are not controverted or denied by filing an affidavit, the allegations have to be deemed to have been admitted by the person against whom the allegations are made. Thus the court has only one option, i.e., to proceed on the basis of the allegations made in the writ petition which have to be taken to have been admitted by the respondents. Once the allegations are taken to have been admitted by the respondents the Court has no option but to allow the writ petition by granting the relief’s as prayed for by the petitioners to the extent they are permissible. 12. The Court is not issuing any mandamus for recalling any order of conversion as the basis of such prayer is very uncertain. However, the Court directs the respondents to restore the land of the petitioners to its original condition by reconstructing the boundary wall and refilling the soil which had been excavated from the land of the petitioners by the respondents. Such action is to be taken by the respondents within a period of four weeks from the date of communication of the order. 13. With the directions as above the writ petition is partly allowed. 14. There shall be no order as to costs. 15. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.