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IN THE HIGH COURT AT CALCUTTA
Arijit Banerjee, Apurba Sinha Ray, JJ.
Anuradha Sen – Petitioner
Versus
The Kolkata Municipal Corporation & Ors. – Respondents
M.A.T. 932 of 2022
Decided On : 09-01-2024
KMC Act - Property Dispute - Section 39 of the KMC Act, 1980 and Section 17A of the West Bengal Inland Fisheries Act, 1984 - The court directed the men and agents of the Kolkata Municipal Corporation to make a physical inspection of the property in question to ascertain the position where the water body actually existed. The inspection report revealed that the land in question was not being used for the purposes of Pisciculture, and the entire exercise undertaken by the Commissioner of KMC purportedly under Section 17A of the 1984 Act was without jurisdiction. The court quashed the action taken by the Commissioner of KMC and directed KMC to vacate the concerned premises and hand over possession to the appellant. The competent authority was allowed to initiate proceedings to ascertain whether the land in question comes within the purview of Section 17A of the 1984 Act, observing the principles of natural justice.
Fact of the Case:
The appellant and her husband purchased certain premises, and after the husband's death, the Kolkata Municipal Corporation (KMC) took steps to restore a water body on the premises, leading to a property dispute.
Finding of the Court:
The court found that the land in question was not being used for Pisciculture, and the actions taken by KMC were without jurisdiction. The court quashed the actions taken by KMC and directed KMC to vacate the premises and hand over possession to the appellant.
Issues: The main issue was whether the actions taken by KMC under Section 17A of the 1984 Act were justified, and whether the land in question was being used for the purposes of Pisciculture.
Ratio Decidendi: The court held that the actions taken by KMC were without jurisdiction as the land in question was not being used for Pisciculture, and directed KMC to vacate the premises and hand over possession to the appellant. The competent authority was allowed to initiate proceedings to ascertain whether the land in question comes within the purview of Section 17A of the 1984 Act, observing the principles of natural justice.
Final Decision: The court quashed the actions taken by the Commissioner of KMC and directed KMC to vacate the concerned premises and hand over possession to the appellant. The competent authority was allowed to initiate proceedings to ascertain whether the land in question comes within the purview of Section 17A of the 1984 Act, observing the principles of natural justice.
JUDGMENT :
Arijit Banerjee, J.
1. This appeal is directed against a judgment and order dated June 17, 2022, whereby the writ petition of the appellant herein, being W.P.A. 10390 of 2022, was disposed of by a learned Judge of this Court.
2. The appellant/writ petitioner approached the learned Single Judge with the following case:-
(ii) The writ petitioner’s husband passed away on May 24, 2022.
(iii) Mutation of the said premises has not yet been effected in the name of the writ petitioner. She resides permanently at “Ananda Niketan” 58A Diamond Harbour Road, P.O. Joka, P.S. Thakurpukur, Pin- 700104, District 24 Parganas (South), which is about 8 km. away from the said premises.
(iv) On or about June 9, 2022, the petitioner received telephonic information from certain persons in the locality where the said premises are situated, that the local councilor of Kolkata Municipal Corporation (in short ‘KMC’), along with his men and associates, had forcibly entered the said premises by partially demolishing the boundary wall and had started digging the soil with excavators.
(v) On that very day, the petitioner visited the said premises and found that work of excavation of soil was going on there.
(vi) The petitioner rushed to the Behala Police Station to lodge a complaint. However, the complaint was not entertained by the police official who held out that since it was official work of KMC, they would not entertain any complaint.
(vii) Neither the petitioner nor her husband during his life time received any notice or intimation from any authority, far less the KMC.”
3. In the writ petition, inter alia, the following prayers were made:-
c) A writ of/in the nature of Mandamus and/or order or orders and/or direction or directions of like nature commanding the respondents and their men, agents or servants and each of them to desist from in any manner entering upon the properties at premises no. 111, Bhupen Roy Road, Ward no. 120(KMC), Police Station: Behala, Kolkata – 700034 and Municipal Premises No. 93, Bhupen Roy Road, Ward No 120 (KMC), Police Station: Behala, Kolkata – 700 034 or from disturbing the peaceful possession of the petitioner in the said premises in any manner whatsoever;
d) Rule NISI be made absolute if no cause or insufficient cause is shown by the respondents;
e) Any further change of any nature whatsoever to and in respect of the premises no. 111, Bhupen Roy Road, Ward No. 120(KMC), Police Station: Behala, Kolkata – 700 034 and Municipal Premises No. 93, Bhupen Roy Road, Ward No. 120(KMC), Police Station: Behala, Kolkata – 700 034 co-owned by your petitioner till the disposal of this application;
f) Injunction directing the respondents to forthwith remove their men and machine (Excavator) from the properties at premises no. 111, Bhupen Roy Road, Ward No. 120(KMC), Police Station: Behala, Kolkata – 700 034 and Municipal, Premises no. 93, Bhupen Roy Road, Ward no. 120(KMC), Police Station: Behala, Kolkata – 700 034.
g) A fit and proper person be appointed as Special Officer to ensure that change, loss, damage or deterioration whatever caused to the properties at premises no. 111, Bhupen Roy Road, Ward no. 120 (KMC), Police Station: Behala,
Notice to restore land classified as 'Bastu' without proper inquiry is arbitrary; judicial review mandates reasoned decisions backed by evidence.
Conversion of water bodies is strictly prohibited without state approval under the Inland Fisheries Act, reaffirming authority to restore such areas and enforce statutory protections.
A decision by an authority impugned in a writ petition cannot be sustained if it fails to follow the directions in an earlier writ petition passed by a competent court.
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