Sk. Rajiv Imam vs Abp Private Limited & Ors

This application has been filed by the applicant for granting leave in his favour for preferring an appeal against a judgement and order dated April 25, 2018 passed in the matter of ABP Private Limited Vs. State of West Bengal & Ors. (In re: W.P.4890(W) of 2018).

A prayer has been made by the applicant for granting leave to him to move the application in his representative capacity under the provisions of Order 1 Rule 8 of the Code of Civil Procedure, 1908 read with Rule 12 of the Writ Rules framed by the Hon'ble Court.

According to the applicant, he has been residing at premises no.7,JBS Halden Avenue, Ward No.58, under the Kolkata Municipal Corporation, since the year 2003-2004. In support of his possession over the above premises, an Aadhar Card issued by the authority in his favour in the year 2015 (the generation dated March 27, 2015) has been relied upon by way of filing a supplementary affidavit to this application.

It is submitted by Mr. Debabrata Saha Roy, learned Advocate appearing on behalf of the applicant that the premises in question has been purchased by ABP Private Limited on the basis of an award passed by the learned Arbitrator on November 1, 1984. According to him, he has been residing with other similarly situated persons at the premises in question since 2003-2004. It is further submitted by him that after purchasing the premises in question, attempts have been made to evict them forcefully from the premises in question without taking recourse to law for the purpose of construction of a multi-storied building thereon. According to him, there was repetition of such incident of making attempts by the muscleman and hooligans on April 28, 2013 at about 7-30 P.M. under the leadership of ABP Private Limited. According to him, after lodging a complaint in the Pragati Maidan Police Station, a case has been initiated bearing Pragati Maidan Police Station Case No. 105 dated April 28, 2018. It is also submitted by Mr. Saha Roy that a suit bearing T.S. Case No. 683 of 2018 has been filed before the learned 1st Court of Civil Judge(Junior Division) at Alipore for a declaration that the applicant and Sk. Sahajada are entitled to remain in possession and enjoyment of the suit premises till they were evicted thereform due course of law.

Reliance has been placed by Mr.Saha Roy on the decisions of Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. reported in (1985) 3 SCC 545 and Rame Gowda Vs. M. Varadappa Naidu & Ors. reported in AIR 2004 SC 4609.

The above contentions of the applicant are denied and disputed by Mr. Anindya Mitra, learned Senior Advocate, appearing on behalf of the ABP Private Limited. According to him, the applicant does not produce any single sheet of paper in support of his claim that he has been residing at the premises in question from the year 2003-2004. According to him, in view of the above, he is not a proper party to be added in the appeal which is preferred against the judgment and order passed in the writ application because the above writ application was filed for issuing a writ in the nature of Mandamus commanding the police authorities to take immediate steps for removal of the said trespassers from the premises in question and to ensure the removal of the trespassers, maintenance of peace and law and order in the premises so that the right and enjoyment of the property in question is not obstructed or interfered with in any illegal manner. It is also the contention of Mr. Mitra that the vacant peaceful possession of the premises in question was handed over to ABP Private Limited by the Kolkata Municipal Corporation in terms of the lease deed dated July 14, 2005 pursuant to an order passed by a Division Bench of this Court dated August 22, 2016 passed in the matter of Kolkata Municipal Corporation & Ors. Vs. ABP Private Limited & Ors. (n re: APO 246 of 2014).

We have heard the learned Counsel appearing for the respective parties at length and we have considered the facts and circumstances of this case. It is not in dispute that by virtue of an indenture of lease dated July 14, 2005 the premise in question has been leased out in favour of ABP Private Limited by the Kolkata Municipal Corporation. A reference may be made to the order dated August 26, 2014 passed by a Division Bench of this Court in the matter of Kolkata Municipal Corporation & Ors.(In re: APO 246 of 2014). The proposition of law with regard to proper party to a proceeding has been settled by the Hon'ble Supreme Court in the matter Razia Begum Vs. Sahebjadi Anwar Begum & Ors. reported in AIR 1958 SC 886.

The same principle was repeated and reiterated in the matter of Udit Narayan Singh Vs. Additional Member, Board of Revenue reported in AIR 1963 SC 786. Reference may be made to the decision of Jasbhai Motibhai Desai Vs. Roshan Kumar & Ors. reported in AIR 1976 SC 578 and the relevant portion of the above decision is quoted below :

" 38.To distinguish such applicants from 'strangers', among them, some broad test may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are; Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognized by law, has been prejudicially and directly affected by the Act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person " against whom a decision has been pronounced which has wrongfully deprived him of something or wrongly refused him something, or wrongly affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the Act of usurpation or jurisdiction on the part of the authority? If this statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?"

So far as the factual matrix of this case is concerned, it is not in dispute that the only document, which is produced before us by the applicant as an Aadhar Card issued in his favour by the authority in the year 2015 (the generation date March 27, 2017). It is also not in dispute that a suit has already been initiated by the applicant bearing T.S. Case No. 683 of 2018 which is pending before the learned 1st Court of Civil Judge(Junior Division) at Alipore. It is also not in dispute that the prayer for an ad-interim injunction in this connection filed by the applicant has been rejected by this Court. No material is produced before us to show that the above order has been challenged by the applicant in the higher forum.

So far as the Aadhar Card is concerned, we are of the considered view that the same cannot be accepted as a prima facie proof of the settled possession of the applicant over the premises in question.

In view of the above admitted facts and circumstances, we do not find any reason to allow the application for leave to appeal, the question of his possession over the property in question which can only be decided by the appropriate civil forum where the suit is pending.

We, however, further make it clear we have not expressed our opinion on merits so far as the issue pending before the above Civil Court. More over, this application is made by the applicant to be added in the appeal preferred by the State of West Bengal in a representative capacity.

We are not inclined to grant him leave to prefer an appeal in a representative capacity for his behalf as also on behalf of the strangers whose status, right and title over the premises in question has not been disclosed even in a single sentence.

The decision of Olga Tellies under Article 21 of the Constitution of India, the above decision has no bearing on the claim of the applicant in view of the distinguishable facts and circumstances as recorded hereinabove. On the same ground the decision of Ramiya (Supra) does not help the applicant in any way.

This application stands dismissed. As a consequence, no further order need be passed in connection with the appeal bearing no. M.A.T. 393 of 2018 in view of the dismissal of application bearing C.A.N. 2547 of 2018 filed in connection with the appeal.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.