UTTAM DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is preferred against the order dated 20th July 2004 in C.O. 5045 (W) of 1993. The appellants are claiming, they are occupiers of 0.23 acres of land in Plot No. 6004 (part) and had been residing there since 1971 after constructing their hutments. On the pretext of acquiring the said land and construction of a Water Treatment Plant, the appellants were sought to be evicted without initiating any legal proceedings. The petitioners moved a writ petition, which was disposed of by directing the authorities to evict the appellants only in accordance with law, which is annexure 'B' to the writ petition. This order was passed on 4th December 1992. Thereafter notice under section 3(1) of the West Bengal Public Land (Eviction and Unauthorized Occupants) Act, 1962 was initiated. The notice thereunder was issued on 3rd February 1993. The schedule of land mentioned therein were Dags Nos.5939, 5940; 6002 (part) and 6004 (part). On 19th February 1993 the writ petitioners filed their objection or showed cause jointly. On 20th February 1993 an order under section 4(1) clause (a) was passed and implemented by demolishing the houses of the appellants with the help of police. The respondents attempted to oust them on 25th February 1993, before which the present writ petition being C.O. 5045 (W) of 1993 was moved on 25th February 1993, wherein an order of status quo was passed for a period of seven days. Affidavit-in- opposition and Affidavit-in-reply were exchanged and various statement was made in the pleadings. The order of status quo was passed again on 10th September 2002 and several other orders were passed and ultimately a surveyor was appointed, who filed his report on 24th September 2002. By an order dated 20th July 2004 since appealed against, the police was directed to remove everyone from inside the boundary wall.

(2.) From the pleadings it appears that the houses were demolished but even then the appellants could not be ousted and before that the order of status quo was obtained for a period of seven days. But it does not appear that the order of status quo was continued after seven days. The order of status quo was again issued on 10th September 2002. Therefore, it appears that there was no scope of reconstruction of any house in the area where the houses were demolished and the appellants were sought to be removed or ousted. On the other hand, the learned counsel for the appellants pointed out that these appellants are residing on the said land and had produced certain photographs showing the houses therein, at the same time destruction of some houses. In the opposition to the eviction proceedings initiated though the notice No. 248(45/g) dated 3rd February 1993, the appellants had claimed that they have been living peacefully in the said land since 1971 and specified the Dags No. of the land on which they were living. This is at page 32 paragraph 6 of the Stay application mentioning Dags No. 5937, 5938 and 6177. This was filed on 19th February 1993. Therefore, till February 1993 the appellants did not claim any right over plot No. 6004 (western part).

(3.) Subsequently, the appellants made an application in the writ petition being CAN 6573 of 2002 where, for the first time, as it appears before us and which could not be disputed by the learned counsel for the appellants, the claim over plot No. 6004 (part) was made. In this application in paragraph 3 clause 'b' the appellants stated that the notice related to plots No. 5939, 5940, 6002 (part), 6004 (part) and 6176 Mouza Aridaha, Kamarhati. It was pointed out that the appellants were not residing on plot No. 6176 and they had nothing to do with the said plot. In paragraph 3(h), it was contended that the opposite parties/ respondents had no right to disturb the appellants peaceful possession over the said laid. In paragraph 6, it was stated that the appellants were evicted from the said land being plots No. 5939, 5940, 6002 (part) and 6004 (part) and their houses thereon were demolished, by force. Therefore, a prayer was made for restoring status quo ante as on July 2002 in respect of the appellants possession and settle in Dag Nos. 5939, 5940, 6002 (part) and 6004 (part) and rebuild the structure and resettle the appellants and to restore possession.