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2019 DIGILAW 981 (CAL)

Ashok Kumar Shaw v. Kolkata Municipal Corporation

2019-12-30

SHAMPA SARKAR

body2019
Judgment : 1. The Court: In spite of service, none appears on behalf of the State of West Bengal as also Kolkata Municipal Corporation. Affidavit-of-service is taken on record. 2. The petitioners are the tenants in respect of one shop room at Premises No. 4B, Chowringhee Place, Kolkata-700013. 3. The petitioners were inducted as tenants by one Bengal Properties Private Limited who allegedly have a leasehold right over the said shop room. The building on which the shop room is situated belongs to the Kolkata Municipal Corporation. 4. The petitioners have been carrying on business in respect of the shop room under the trade name and style of M/s. Ambika and has been trading inter alia in garments. Records reveal that the petitioners were inducted as the tenants in the year 1998. 5. The Kolkata Municipal recognized the legal status of the petitioners as lawful occupiers of the shop room at Premises No. 4B, Chowringhee Place, Kolkata-700013 as would appear from the certificate of enlistment which is annexed to the writ petition. 6. The petitioners are also enjoying electrical supply from CESC Limited. 7. The original lease expired in 2005 but the Kolkata Municipal Corporation continued to accept rent from Bengal Properties Private Limited. During the pendency of the lease between Bengal Properties Private Limited and Kolkata Municipal Corporation and thereafter the Corporation also expressed its willingness to grant direct tenancy to the petitioners and other similarly placed persons. A copy of the notice dated November 4, 2016 issued by the Chief Valuer and Surveyor which is annexed as P1 to the writ petition indicates that the occupiers were asked to apply before the Corporation with papers in support of their occupation-mentioning their willingness to pay rent directly to the KMC. Accordingly, by the letter dated November 24, 2016, the petitioners filed that application which is annexed as P2 to the writ petition. 8. It appears that there was a proposal to construct a multi storied building on the said premises and it was provided for that existing occupiers would be rehabilitated in other suitable place till the new construction was completed. Declaration forms were required to be filled in by the occupiers and the petitioners filled the same. 9. 8. It appears that there was a proposal to construct a multi storied building on the said premises and it was provided for that existing occupiers would be rehabilitated in other suitable place till the new construction was completed. Declaration forms were required to be filled in by the occupiers and the petitioners filled the same. 9. Subsequently, notice was served upon the petitioners on October 1, 2019 directing the petitioners to show cause as to why the petitioners should not be evicted from the said premises being an unauthorized occupants. 10. The said notice was challenged by the petitioners by filing W.P. No. 21238(W) of 2019 before this Court. The said writ petition was disposed of by another Co-ordinate Bench of this Court and by an order dated December 3, 2019, a direction was passed upon the Collector to conclude the eviction proceeding within six months on issuing a fresh notice specifying the ground for eviction. 11. Pursuant to the direction of this Court, another notice dated December 13, 2019 was issued and it was contended that the occupiers were not in lawful occupation in respect of the said premises. The petitioners have already challenged the order dated December 3, 2019 by preferring an appeal before this Court. 12. In the meantime, the petitioners were continuing to occupy and run their business from the said premises. It appears that up to October, 2019 the petitioners used to tender the rent to Bengal Properties Private Limited and Bengal Properties Private Limited tendered the same to the Kolkata Municipal Corporation. 13. Under such fact situation, the petitioners were shocked to find certain persons claiming to be employees of the Kolkata Municipal Corporation to come and put a padlock on the shop room in question on the pretext that they had orders of the Court to do the same. It is submitted that no order of Court or prior notice was shown to the petitioners. 14. Challenging the aforesaid action of the Corporation this writ petition has been filed on the ground that on 23rd December, 2019 during the festive season such padlock has been placed and sealed without any prior notice and intimation and without showing any documents or orders from any Court or authority and such action was illegal and the same prevented the petitioners from conducting their regular business. The photographs of the shop room reveal that the padlock has been sealed by Kolkata Municipal Corporation but it is specifically submitted by the petitioners that no written notice was ever issued by Kolkata Municipal Corporation before such padlock was fixed. Moreover, the petitioners made a representation before the Commissioner, Kolkata Municipal Corporation on 23rd December, 2019. 15. However, the Corporation has not taken any steps with regard to such representation. Hence, this writ petition has been filed for a direction upon the Corporation to remove the padlock so that the petitioners can continue the business. 16. It appears that an advance copy of the writ petition was served upon the Kolkata Municipal Corporation as also the Law Department of the Corporation on December 27, 2019 along with a covering letter of the Advocate-on-Record, indicating that the matter would be moved before this Court during the Vacation was also issued. A similar notice was also issued with a copy of this writ petition upon the Advocate-on-Record of the State of West Bengal. Despite service, none of the authorities have appeared before this Court. 17. Under such circumstances, having gone through the records of the case, I find that fixing a padlock on the shop room without any prior notice or intimation to the petitioners without disclosing the reasons for doing so cannot be allowed, prima facie, in view of the fact that this is the Christmas season and the business of the petitioners is being affected. The Corporation or the other authorities were always within their right to proceed against the petitioners in accordance with law and prevent any illegal activity from being carried on in violation of the statutes. But as the petitioners contend that the petitioners were enlisted with the Corporation and had been carrying on business and were also allowed to apply for direct tenancy under the Corporation, unless the Corporation had adequate reasons to put such padlock such action without prior intimation to the petitioner, in my, prima facie, opinion will amount to high handedness. 18. Moreover, it appears that the petitioner is facing eviction proceedings initiated by the competent authority, which shows that the petitioners have been in possession of the shop room and the lawfulness of the same would be decided in the proceedings. 18. Moreover, it appears that the petitioner is facing eviction proceedings initiated by the competent authority, which shows that the petitioners have been in possession of the shop room and the lawfulness of the same would be decided in the proceedings. Although passing an order for opening the padlock would amount to granting the main relief, yet the Corporation having not appeared before this Court despite notice and the police authorities or the State respondents not having appeared before this Court despite notice, the Court has no other option but to protect the petitioners for a limited period. The officer-in- charge of New Market Police Station, 136, S. N. Banerjee Road, Kolkata will remove the padlock upon notice to the Kolkata Municipal Corporation within December 31, 2019 for a period of ten days so that the petitioners are able to run the business from the said shop room under the supervision of the police authorities as also the KMC authorities. Thereafter, if the police authorities and the Corporation have adequate reason for putting back the padlock on the shop room, the same shall be done after ten days upon intimation to the petitioner subject to the final result of this writ petition. After the expiry of ten days upon notice to the petitioners, such re-affixing of the padlock will be permitted which will abide by the result of this writ petition. A notice should be given to the petitioner. 19. Let this matter appear before the Regular Bench. 20. Petitioners are directed to communicate this order to all concerned. Parties to act on the basis of the lawyer's communication of the order as also server copy of this order. 21. Urgent certified photostat copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities. Parties shall act on the basis of the server copy of this order.