JOY PRAKASH PRAMANIK Vs. CHAIRMAN KAMARHATI MUNICIPALITY

JUDGEMENT

(1.) The respondent No.3 had set up its factory at 1, Sagore Dutta Ghat Road, a road named after late Sagore Dutta, an eminent resident of Kamarhati, and running east-west, starting from the end of Mackenzi Road in the east and ending on the bank of the river Hooghly in the west. At the western end of the said road on the bank of the river Hooghly, there is a bathing ghat known as 'Sagore Dutta Ghat' and the inhabitants of the Kamarhati Municipality use the said Ghat for taking bath and also for performing their religious rites and the said road is a public road owned and controlled by the Kamarhati Municipality. The petitioners, who claim to be the inhabitants of Kamarhati, allege inter alia, in this civil order that the respondent No.3 was trying to encroach upon a portion of the said road near its western end and was also attempting to close the said encroached portion of the said road, thereby blocking and/or obstructing the rights of the inhabitants of the locality to go to the river Hooghly for bathing as well as for performing the religious rites through the said road and barring the said Sagore Dutta Ghat, there is no other bathing ghat within a radius of about 1 K.M. in the area. The petitioners' further case is that they made representations to the Chairman of the Kamarhati Municipality asking him to restrain the respondent No.3 from obstructing and/or encroaching upon the said Sagore Dutta Ghat Road as nobody had any right to encroach upon or block any public street within the Municipality without the consent of the Municipal authority and the Bengal Municipal Act, 1932 does not authorise or empower any Municipal authority to transfer or exchange any part of any public street to any third party, but without any result. According to the petitioners, the aforesaid attempt on the part of the respondent No.3 and the inaction on the part of the Kamarhati Municipality in not disposing of the petitioners' representation ( Annexure 'A') amounting to giving tacit consent to the respondent No.3's aforesaid misdeeds, are wholly illegal, arbitrary, mala fide and cannot be sustained in law.

(2.) Mr. Banerjee, learned Advocate, appearing on behalf of the petitioners, in support of his contentions, have referred to Ss.102 and 102A of the Bengal Municipal Act, 1932 and also to the decision of the Supreme Court in the case of Kumar Pashupati Nath Mullah v. State of West Bengal, AIR 1974 SC 663, and to the definition of 'land' and 'public street' as contained in clauses (27) and (44) of S.3 of the Bengal Municipal Act, 1932, respectively, and has further contended that the resolution adopted by the respondent No.1 Municipality in the matter was also without jurisdiction.

(3.) It is also the contention of Mr. Banerjee that under S.102 of the Bengal Municipal Act, 1932, power has been given to the Commissioners of a Municipality to purchase, lease, sell, exchange or otherwise transfer any land which is not required for the purposes of the said Act and the said section according to Mr. Banerjee does not give any right to the Commissioners to transfer or exchange any public street to any third party except to the State Government under S.102A of the said Act and according to Mr. Banerjee 'land' cannot be equated with any 'public street' as both have got distinct and separate connotations as per the definitions given in the said Act. Further, according to Mr. Banerjee even. assuming that the Commissioners of a Municipality have the right to sell, lease or exchange any public street to any third party other than the State Government under Bengal Municipal Act, 1932, such transfer should be made with the previous sanction of the State Government under clause (b)(ii) of sub-section (1) of the said S.102, which is mandatory in nature, and in the present case the sanction or approval of the State Government was obtained after the transfer was effected and after this Hon'ble Court had granted an interim order of maintaining status quo on 29/06/1987 and thus according to Mr. Banerjee the said transfer is ab initio void.