Calcutta High Court: In an appeal against the order directing the Kolkata Municipal Corporation (KMC) to inspect and decide on the water body’s existence, a division bench comprising of Arijit Banerjee* and Apurba Sinha Ray, JJ., allowed the appeal and KMC’s actions were deemed illegal due to the absence of evidence supporting Section 17A’s applicability. The Court directed further proceedings to determine the land’s status under Section 17A with proper notice and evidence.
Factual Matrix
In the instant matter the appellant/writ petitioner, a widow, and her deceased husband purchased two properties on 17-07-2019, and 24-07-2019, in Kolkata. The husband passed away on 24-05-2022. The mutation of the properties was not done in the petitioner’s name, and she received information that the local councilor and associates forcibly entered the premises, leading to a writ petition.
The petitioner sought a writ of Mandamus to vacate the premises, desist from entering, and maintain status quo. The petitioner also requested appointment of a Special Officer, an injunction to remove KMC’s equipment from the properties and sought a report on the nature of the properties. The Court vide order dated 10-06-2022, restrained KMC from entering the premises until 17-06-2022, pending further instructions. On 14-06-2022, the Court noted discrepancies in property information and directed the KMC to clarify its actions under the law. On 17-06-2022, KMC justified its actions under Sections 39 of the KMC Act, 1980 (KMC Act) and 17-A of the West Bengal Inland Fisheries Act, 1984 (the 1984 Act). The Court directed a physical inspection by KMC and preservation of status quo until further notice. The appellant appealed against the impugned order, challenging the legality of KMC’s actions under Section 17A of the 1984 Act.
Court’s Analysis
The Court addressed the maintainability of the appeal, citing consent to inspection but not to other aspects of the order. The Court examined the enforceability of Section 17A and ruled that it became operational on 16-06-1994. The Court emphasised the need for the competent authority to establish that the land satisfies Section 17A criteria before invoking its powers.
Court’s Decision
The Court quashed KMC’s actions, stating they were without jurisdiction. The Court granted the appellant possession, and KMC was directed to vacate the premises. The Court allowed the competent authority to initiate proceedings to ascertain if the land falls under Section 17A criteria. The appeal was deemed maintainable, and there was no order on costs.
Post-Judgment Actions
The Court allowed the appellant to collect the keys from the Registrar General to access the premises. The court maintained the appellant’s possession and authorized her to deal with any belongings left by KMC if not removed within three days.
[Anuradha Sen v. Kolkata Municipal Corpn., 2024 SCC OnLine Cal 185, order dated 09-01-2024]
*Judgment by Justice Arijit Banerjee
Advocates who appeared in this case :
Mr. Suddhasatva Banerjee, Mr. Pramit Bag, Mr. Ashis Kumar Mukherjee, Mr. Saurabh Prasad, Mr. Anirban Gope, Counsel for the Appellants/writ petitioner
Mr. Sourajit Dasgupta, Mr. Abhinav Rakshit, Counsel for the Respondent 4
Mr. Ashok Kr. Banerjee, Sr. Adv., Mr. Arijit Dey, Counsel for the KMC
Mr. Anirban Ray, ld. Government Pleader., Mr. Raja Saha, Mr. Debraj Sahu, Counsel for the State
