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Judgment
RAJA BASU CHOWDHURY, J:
The instant writ petition has been filed, inter alia, praying for a direction upon the respondents to terminate the appointment of the private respondents for perpetuating fraud while securing his compassionate appointment.
The petitioners claim to have acquired a plot at 49/7/A, Purbachal Main Road corresponding to premises No. 367/B, Purbachal Main Road and had subsequently constructed a two-storied building sometimes in the year 2002.
According to the petitioners, during this sanctioning process of the building, all plot holders within the development voluntarily relinquished a portion of the land, specifically a strip measuring one foot in width, as a gift to facilitate the widening of the existing road from 10 feet to 12 feet thereby contributing to the overall infrastructure enhancement of that area.
According to the petitioners, the private respondent, a duly appointed employee of the Kolkata Municipal Corporation took up residence in a dwelling house situated directly opposite the property of the petitioners and as such became an immediate neighbour.
The petitioners claim that the private respondent had threatened initiation of demolition proceedings against the petitioners unless, he was paid a certain sum of money.
The petitioners had since, lodged a complaint with regard to the aforesaid threat to the municipality and the same had resulted in the disciplinary proceedings.
The petitioners are, however, unaware with regard to the outcome of the departmental proceedings till date.
The petitioners claim that the private respondent ultimately lodged a complaint in the year 2020 alleging unauthorized construction at premises no. 367/B, Purbachal Main Road.
According to the petitioners, the Special Officer (Building) had passed a demolition order in the year 2020, directing removal of all structures and encroachments purportedly situated on land belonging to the Kolkata Municipal Corporation (in short KMC).
The petitioners claims that the execution of the said order was ultimately stayed due to timely intervention of Mayor. The petitioners still further claim that subsequently the petitioners came to learn that the private respondent had secured employment with the KMC on compassionate grounds following the demise of the then serving employee, Bhabatosh Banerjee. According to the petitioners, the private respondent was not a relative of Bhabatosh Banerjee, as such the legitimacy in obtaining the compassionate appointment itself is in doubt. It is in this regard a complaint was lodged by the petitioners to the Vigilant Officer and the Mayor, alleging inter alia, that the private respondent had obtained employment with KMC on compassionate ground following the demise of the then employee, Bhabatosh Banerjee, however, the above appointment is irregular as the private respondent is not the relative of the deceased employee. The employment was obtained by contravening the governing principles for compassionate appointment. The learned advocate for the petitioners would contend that since the employment has been irregularly obtained, the private respondent cannot be permitted to retain such employment and in support of such contention has placed reliance on a judgment delivered by the Hon’ble Supreme Court in the case of the State of Chhattisgarh and Others, v. Dhirjo Kumar Sengar reported in 2009(13) SCC 600. He submits that though the prayer for quo warranto was not included in the writ petition, an application has been filed to amend the petition so as to incorporate the prayer for issuance of writ of quo warranto.
The municipal authorities are represented. Mr. Ghosh, learned advocate appearing for the municipality would submit that the above petition is a counter-blast to the initiation of proceedings of unauthorized construction against the petitioners at the behest of the private respondent. The petitioners had previously approached this Court in public interest litigation, which was registered as WPA(P)/248/2024. By an order dated 4th July, 2024, the Division Bench of this Court presided over by the Hon’ble The Chief Justice had been pleased to dismiss the petition. Subsequently, though the petitioners had approached the Division Bench seeking for liberty to proceed before appropriate forum, the Division Bench had refused to grant any such liberty to the petitioners by observing that if any legal remedy is available to a person, there can be no bar for a legal proceeding. According to Mr. Ghosh, the writ petition deserves to be dismissed and the same has been filed as a counter-blast to the complaint of unauthorized construction against the respondent no.8. On the issue of the disciplinary proceedings, he would submit that such proceedings at present are going on.
State is represented and is heard.
Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I find that the petitioners are not the relatives of Bhabatosh Banerjee. I also note that the petitioners have relied on a memorandum dated 7th December, 2022 issued by the Special Municipal Commissioner. From the aforesaid memorandum, it would transpire that the respondent no.8 was appointed w.e.f. 10th February, 1986 on compassionate ground vide order dated 6th February, 1986. The same further records that from the prayer for job dated 10th October 1985 by the private respondent and other relevant document, it transpires that the private respondent might not be an eligible family member to be considered for appointment on compassionate ground.
In so far as the aforesaid document is concerned, I find that the aforesaid document has not been issued by an authority which could sit in appeal over the order passed by the appointing authority. It is not the petitioner's case that the Special Municipal Commissioner was sitting in appeal over the order of appointment issued by the appointing authority. Further, upon going through the aforesaid document, the Hon’ble Division Bench in its order dated 4th July, 2024 has observed that the said communication does not emphatically say that the appointment could not have been granted to the private respondent on compassionate grounds but uses the expression “might not be an eligible family member to be considered for appointment on compassionate grounds”.
Having regard to the above, I consider the aforesaid document to be too remote a piece of evidence, to direct the municipal authorities to make an enquiry in the matter that too at the instance of the petitioners against whom demolition proceedings had been initiated by the Special Officer Building at the instance of the private respondent. As rightly pointed out by Mr. Ghosh, learned advocate appearing for the municipality, the above writ petition appears to be a counter-blast to the steps taken by the private respondent. This apart, although the learned advocate for the petitioners by relying on the document dated 19th July, 2025 would submit that in response to an RTI application, it has been informed that the birth certificate of the private respondent is not available in the personal file, in my view, no inference can be drawn from such a response that the private respondent had anything to do with misplacing of his birth certificate. It is a well settled that a writ petition cannot be sustained on the basis of conjecture and surmise. As such, I am not inclined to entertain the writ petition.
The judgment delivered in the case of State of Chhattisgarh and Others (Supra), in my view, does not and cannot assist the petitioners. The same has been delivered in different set of facts. The petitioners in the instance case have not been able to establish even remotely that the private respondent was not eligible to obtain the compassionate appointment. As such, the above judgment does not assist the petitioners.
So, far as the application for amendment of the writ petition is concerned, I find that a writ of quo warranto cannot be issued based on assumption, inference or speculation. There must be an establishment of the fact that the public officer is abusing lawful powers not vested to him within the public authority. It may be noted and as observed in the case of the University of Mysore and Anr. Vs. C. D. Govinda Rao and Anr. reported in AIR 1965 SC 491 that writ of quo warranto is technical in nature, as was observed therein:-
“As Halsbury has observed* "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, 'franchise, or liberty, to, inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined:
Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an inde- pendent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo *Halsbury's Laws of England, 3rd ed., vol. 11, p. 145.
warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.”
18.The petitioners have also not been able to establish the case for grant of writ of quo warranto. As such, the application being IA No.GA/1/2026 stands dismissed.
The writ petition, accordingly, also stands dismissed with cost of Rs.50,000/- to be paid by the petitioner to the Calcutta High Court Legal Services Committee.
Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of all necessary formalities.