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2003 Supreme(Cal) 667
IN THE HIGH COURT AT CALCUTTA
KALYAN JYOTI SENGUPTA, J.
The W. B. State Fishermen's Co-operative Federation Limited – Appellant
Versus
Kolkata Municipal Corporation – Respondent
W. P. No. 360 of 2003
Decided On : 07-08-2003
Municipal authority cannot evict or destroy property of licensees without lawful revocation of license and adherence to due process; unlawful actions infringing fundamental rights may warrant compensation.
Headnote:(A) Kolkata Municipal Corporation Act - Sections 539(d) and 400 - Dispossession without revocation of licence - Petitioners allowed to operate stalls for selling fish products; no valid reason given for demolition of stalls or destruction of property by municipal officials - Court held that unauthorized eviction amounted to trespassing. (Paras 10, 13, 21)
(B) Right to livelihood and judicial review - Court emphasized that in public interest litigation, monetary relief may be granted under Articles 226 and 32 of the Constitution when fundamental rights are infringed; unlawful actions of the municipal authority warrant restoration of possession and compensation for loss incurred due to illegal demolition. (Paras 21, 24, 25)
Facts of the case:
The petitioners, a fishermen's cooperative, operated retail stalls in Kolkata under a licence granted by the Corporation, which attempted to increase the licence fee and subsequently demolished the structures without notice in 2003.
Findings of Court:
The demolition was illegal, unauthorized, and a violation of the petitioners' rights. The petitioners were entitled to restoration of their stalls and potential compensation for damage.
Issues: Whether the Municipal authority had the right to demolish the stalls and whether due process was followed in evicting the petitioners from the premises.
Ratio Decidendi: The authorities cannot dispossess individuals without lawful revocation of their licence and without following due process; actions taken without notice or justification are arbitrary.
Result: Respondents directed to restore possession and compensate for damages.
| Table of Content |
|---|
| 1. establishment of business with license. (Para 1 , 2 , 3) |
| 2. unauthorized demolition without notice. (Para 4 , 5) |
| 3. dispossession without authority of law. (Para 6 , 8) |
| 4. issues of license validity and dispossession. (Para 9 , 10 , 11) |
| 5. right against forcible eviction. (Para 14 , 15 , 17) |
| 6. judicial review relief for fundamental rights. (Para 21 , 24) |
| 7. remedy for illegal destruction and restitution. (Para 25 , 26 , 27) |
ORDER
1. This writ petition has been taken out by the apex body of the Fishermen's Co-operative, who gets patronage of the Central Government with grant of Rs. 35 lacs and also of the State of West Bengal by its Fishery Department. The petitioner No. 1 set up 12 retail outlets for the fish products at 12 several places in the city of Kolkata in or about 1993 with the permission and licence being granted by the Kolkata Municipal Corporation (then Calcutta Municipal Corporation) being the respondent No. 1 to occupy its part of the land and to run the business.
2. The respondent No. 1 granted licence to use and occupy portion of the land upon payment of fees at the rate of Rs. 5/- per sq.ft. per year initially. The petitioner No. 1 accordingly on licence being granted, with its permission built structure for 12 numbers of stalls and kiosks. One of such structures was built at Chetla Park, in the city.
3. It appears from the records, in the aforesaid stalls, unemployed youths were engaged to run business on no-profit-no-loss basis. This business came to be source of their livelihood. There was no dispute between the petitioners and the respondent No. 1 until 4th of July, 2001, when the respondent No. 1 communicated to the Managing Director of the petitioner No. 1 for the increase of licence fee of all the stalls at the rate of Rs. 60 per sq.ft. per year for the next five years, with effect from 2nd June, 1997. However, the aforesaid increase was sought to be effective, so far as Chetla Park outlet is concerned, with effect from 13th October, 1998. It appears various correspondence was exchanged between and/or on behalf of both the parties. The Hon'ble Minister of Fishery Department also made request to the Mayor of the respondent No. 1 not to increase the licence fee. It appears that the issue with regard to the increase of licence fee is yet to be resolved. The Mayor did not agree to budge a single inch from the decision to increase the licence fee. It appears that substantial portion of the licence fee was and still is remaining due and payable as per the enhanced rate. It does not appear from the record, either, that licence was revoked and/or terminated notwithstanding the alleged non-payment of the licence fees at enhanced rate.
4. The aforesaid facts are admitted. In the background of the aforesaid facts, on 12th February 2003 at about 7.30 p.m. in the evening some of the officials of the respondent No. 1 with bulldozer demolished the stall at Chetla Park in its entirety and also destroyed the articles and moveable thereat, which include refrigerator, furniture, fixtures and stock-in-trade. The employees engaged therein asked for decision or reason of the authority for such wanton destruction. Nothing was disclosed to them. It is alleged that no prior notice was served for alleged demolition; nor any reason was communicated before or after demolition to the petitioners or any of the employees.
5. The complaint was lodged with the local police station against wanton destruction and demolition of the structure and the moveable stock in trade, which admittedly belonged to the writ petitioner No. 1. Appropriate officials of the Government of West Bengal recorded similar complaint. The grievances of the petitioners were not redressed; as such they approached this Court with this petition.
6. Mr. Saktinath Mukherjee, learned senior counsel appearing in support of the petitioners submits that the petitioners having been granted licence expressly set up stall at Chetla Park to sell various items of fish-fo
