Calcutta High Court (Appellete Side)
Razia Khatoon & Anr vs The State Of West Bengal & Ors on 28 July, 2016
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
THE HON'BLE JUSTICE SOUMEN SEN
W.P. 2035 (W) of 2015
With
C.A.N. NO.11547 OF 2015.
RAZIA KHATOON & ANR.
VS.
THE STATE OF WEST BENGAL & ORS.
For the petitioners : Mr. Kishore Datta, Sr. Adv.
Mr. Partha Chakraborty,
Mr. Abhijit Ghoshal.
For the private respondent No.5 : Mr. S.N. Mookherjee, Sr. Adv.,
Mr. Sakya Sen, Mr. Sukrit Mukherjee, Mr. S.R. Kakrania, Mr. Sanjeeb Seni, Mr. Souvik Kundu, Mr. Kumarjit Banerjee.
For the State : Mr. Samrat Sen, Sr. Adv.,
Mr. Amitava Mitra.
Heard On : 19.02.2016, 24.02.2016, 30.06.2016,
20.07.2016, 22.07.2016.
Judgment On :28th July, 2016.
Soumen Sen, J. : - The overt act of Police Authorities in assisting the private respondent No.5 to take possession of Premises No.35A & 35B, Karl Marx Sarani (previously known as 35, Garden Reach Road) is the subject matter of this Writ Petition.
The petitioners claimed to be the absolute owner of Premises No. 35A & 35B, Karl Marx Sarani by way of inheritance from their predecessors. The petitioners alleged that their claim to ownership of the suit property would be borne out from the registered deeds executed in the office of DRP and SRO in the name of Sk. Gulam Nabi and others and the said property has been duly recorded in the office of KMC. The original recorded owner was Gooljan Bibi who was the great grandmother of the petitioner No.2. The petitioners alleged that the respondent No.5 with the help of Committee of Hooghly Imambara was trying to assert their right in respect of the property by virtue of a deed executed in the year 1993 duly registered in the Office of Calcutta Assurance in an attempt to deprive the petitioners of their right, title, interest and enjoyment of the property in question.
The immediate cause of action for filing the writ petition is an incident alleged to have occurred on 24th November, 2014 when it is alleged that the respondent No.5 and its men, servants, agents and associates accompanied by huge police authorities attempted to break open the padlock put by the petitioners and failed in their attempt to do so. They removed the padlock by using gas cutter and the entire incident occurred in presence and executed in active participation of the Senior Police Officials as well as Assistant Police Commissioner and with the help of the police authorities, the respondent No.5 with their men, servants and agents forcibly entered into the premises in question. The entire episode, it is alleged, has been recorded in the CCTV installed outside the wall of the premises in question and footings of the CCTV would show that the local Police Authorities are directly and unauthorizedly involved in helping the respondent No.5 in taking possession of the premises in question forcibly and illegally which, it is alleged at the relevant point of time, was under the occupation of the petitioners.
Mr. Kishore Datta, learned Senior Counsel appearing on behalf of the writ petitioners submits that the respondents, in chorus, raise preliminary objection to the maintainability of the instant petition alleging that it involves disputed questions of facts, title over the property and contend that the subject matter of this petition cannot conveniently be decided in the writ jurisdiction of this Hon'ble Court.
It is submitted that such submissions of the respondents are made in desperation and intended to divert the attention of this Hon'ble Court from the core issue involved in the petition, namely, if the Police interferes with the property rights of the citizens and assists some one to gain advantage over the other in respect of the property, it is the writ Court which has to set right the wrong without going into the question of the right, title and interest of the parties over such property. Police having acted beyond its jurisdiction, the remedy lies in approaching the court exercising powers under Article 226 of the Constitution of India. A suit under Section 6 of the Specific Relief Act, 1963 is not the appropriate remedy.
The exclusion of the Government (Police in this case) from the operation of Section 6 of the Specific Relief Act, 1963 is required to be taken into consideration. This exclusion reinforces the submission of the petitioners that the State is not free to act in an arbitrary manner by taking law in its own hand and forcibly dispossess the petitioners without having recourse to the process of law and in case the State acts in such manner the remedy available is under Article 226 of the Constitution of India. The preliminary objections of the respondents are thus misplaced and contrary to settled principles of law.
The learned Senior Counsel has submitted that the right of the petitioner in respect of the property in question would be evident from the following facts:-
i) The predecessors-in-interest of the writ petitioners acquired the property under a decree passed in Title Suit No.201 of 1915. The writ petitioners are the successors of Guljan Bibi and Sheikh Golam Nabi. The writ petitioners are in possession and occupation either by themselves or through their predecessors since 1900. The ownership and possession of the predecessors-in-interest of the writ petitioners are apparent from the report of the partition-Commission appointed in Title Suit No.201 of 1915 disposed of by Learned 1st Sub-Judge, District 24-Parganas, wherein the Partition Commissioner categorically recorded the portion of the property allotted to Guljan Bibi.
ii) By virtue of the Final Decree passed in the aforesaid Partition suit, Guljan Bibi, the predecessor of the writ petitioners had been allotted the subject property and subsequently several deeds of transfer were executed by the then owners of the demised premises in favour of the deceased husband and father of the writ petitioners devolving right, title and interest of over the subject property and the writ petitioners and other co-owners.
iii) Since 1918 up to 1993 there was no ambiguity over the property-in-
question but in the year 1993 by virtue of an order dated 01.10.1993 passed by Division Bench of this Hon'ble Court in a Letters' Patent Appeal, the joint administrators appointed by this Hon'ble Court in the said Letters' Patent Appeal executed a Lease deed in favour of Respondent no.5 which was duly registered covering several properties including premises no.35 and 36 the then Circular Garden Reach Road, now Karl Marx Sarani, Kolkata which introduced the Respondent No.5 with regard to the subject property.
iv) The writ petitioners no.2 obtained Trade Licence for car parking garage some time in the month of August, 2014 and the writ petitioner No.2 just started his car parking business when the purported incident took place by the Police Authorities. It is a precondition under the provisions of Kolkata Municipal Corporation Act, 1980 before granting Trade Licence that the inspectors of KMC must inspect the premises or place for which the Trade Licence is sought for which is mandatory in nature and the same procedure must have been followed in case of petitioner no.2 and after having been satisfied as to the place of business of the petitioner no.2, the KMC authorities granted Trade Licence in favour of the petitioner No.2 concerning the subject property.
It is submitted that the claim of the respondent No.5 over the property is based on possession. However, the respondent has failed to demonstrate that possession was handed over to the respondent No.5 and the respondent No.5 was in occupation of the property. Although there was an order passed by the Hon'ble Division Bench in Appeal No.787 of 1988 challenging the order dismissing the application under Clause 13 of the Letters Patent for transfer of the suit before this Court but there is no documents to show that Hooghly Imambara has never claimed or asserted any ownership over the property in question and, accordingly, any lease granted by the Imambara is void ab initio. Moreover, no appeal lies before the Hon'ble Court against an order dismissing an application under Clause 13 of the Letters Patent. No suit was pending before this Hon'ble High Court. However, in a non-existent suit several orders were passed including the order dated 1st October, 1993, all of which have been declared as nullity by an order dated 2nd April, 2015 passed by a Division Bench in G.A. Nos.551 & 552 of 2015, APO No.787 of 1988, W.P. No.1940 of 1988.
The G.D. Entry dated 20th December, 1993 in the Watgunge Police Station is insufficient to assert a claim of possession of the property in question in absence of any document to show that, in fact, they were put to possession. It is submitted that the illegalities committed by the Police Authorities are apparent and would be evident from the reports filed by the Police Authorities in this proceeding. It is submitted that since 12th November, 2014/13th November, 2014 Police Officials of the Watgunge Police Station and other Police Stations of Port Division started picketing in front of the main gate of the subject premises and restricted the petitioners and their representatives to enter into the property in question.
Such Police picketing was arranged in front of the main gate of the premises in question without any provocation or request. No untoward incident took place justifying any Police picketing in front of the main gate of the premises in question. There was no breach of peace for which Police picketing was necessary. The petitioners became suspicious after noticing Police picket in front of the subject premises and at no other places in the locality.
Apprehending foul play by the respondent Police Authorities at the instance of the respondent No.5, the petitioners installed two Close Circuit Television Cameras or CCTV cameras, one on the lamppost opposite to the main gate of the subject premises and the other at the back side of the subject premises.
The CCTV Camera footage shows the activities of the members of the Police Picket and the Police Officials of Watgunge Police Station and other Police Stations of Port Division from 13th November, 2014 to 24th November, 2014 recorded in Compact Disc and still photographs annexed to the supplementary affidavits of the petitioners affirmed on 3rd February, 2015 and 1st July, 2015.
It is submitted that the said CCTV camera footage of 24th November, 2014 would show that while the police picket was continuing, at about 11.30 hours a huge police force came to the subject property led by one Assistant Police Commissioner of Port Division and accompanied by several persons and security guards without proper dress. The said persons including one of the directors of the respondent No.5 then tried to break open the padlock forcefully put on by the petitioners at the main entrance gate of the subject property. On being unsuccessful, the police officials present there, hired one Gas cutter to remove the two padlocks put on the main entrance gate by the petitioners and opened the small gate within the big entrance gate and allowed the men and agents of the respondent No.5 to enter the subject property and after some time everybody came out and the director of the respondent No.5 put their padlock. The entire activity was supervised and guided by the Police officials present there. The police facilitated the respondent No.5 to trespass into the property.
The Supplementary Affidavits would show that the police picket and barricade was present round the clock from 14th November, 2014 upto 23rd November, 2014. The police picket restricted the entry of the petitioners or their representatives into the subject premises and the main entrance gate was under lock and key put on by the petitioners and such police picketing had been made without any order of any Court of law which clearly speaks of that the police authorities acted beyond the scope of their statutory duties at the behest of the respondent No.5 with the sole purpose of dispossessing the petitioners without recourse to law.
The learned Senior Counsel has referred to the two reports submitted before this Hon'ble Court pursuant to orders passed in the proceedings and submitted that the said reports are contradictory and inconsistent with the case made out by the respondent No.5. The report submitted by the Deputy Commissioner of Police, Port Division, Kolkata dated 9th March, 2015 and the report submitted by the Joint Commissioner of Police (AP), Kolkata Police dated 19th June, 2015 though speaks of the alleged missing key by the representative of the respondent No.5 which activated the police but in the written complaint lodged by one of the A.S.I. of Watgunge Police Station and by one of the Director of respondent No.5 on 24th November, 2014 immediately after the incident do not record that keys were missing and that the padlocks were removed with the help of gas cutters with police assistance.
The purported incident took place between 11.00 A.M. - 11.45 A.M. on 24th November, 2014 and the same was diarized at the Watgunge Police Station at 14.00 hrs vide entry no.1872 dated 24th November, 2014. The G.D. Entry Book at the Police Station does not record as to why, how and under what authority huge police force was posted at the main entrance gate of the subject premises even before any complaint was lodged and without making any entry in the General Diary Book. The G.D. Entry Book also does not record subsequent to the incident that a huge police force was deployed at the site on 24th November, 2014.
It is submitted that neither of the two police reports record the fact that on 24th November, 2014, early in the morning, at about 1:45 A.M. an email was sent from Special Additional C.P. & Joint C.P. HQRS To JT.CSP - INTELLIGENCE/CRIME/SCO., DCSPD/TP/WLS/EB/SR.AP/W.POLICE, ACS- CR/SRI BODHAYAN ROY, PD/HQF, OCS-CR/TCR/WLS/SEC.W/BRI/SB (WATCH), P.A. TO SPL. ADDL. C.P. & JT.CP. HQRS./PRB directing Police arrangements in front of 35A, 35B, 36A, 36B CGR Road Kolkata 23 (Watgunge P.S.) but the CCTV footage clearly shows such police arrangement was made only in front of 35A & 35B CGR Road (now Karl Marx Sarani) and not in front of premises no.36A & 36B CGR Road. The real motive behind of it is abundantly clear and transparent.
In view of the contradictory stand of the Police Authorities, it is evident that the police interfered with property rights and rendered illegal assistance to the respondent No.5 to trespass into the property of the petitioners to gain advantage over the other in such private dispute.
The respondent No.5 asserts its right and possession over the subject premises under a Deed of Lease executed on 12th November, 1993.
The respondent No.5 did not produce any document to show that they were put into possession in the subject premises.
The Police Authorities, going a step ahead, was obsequious and officious to demonstrate possession of the respondent No.5 without any cogent evidence. In its eagerness, the State, in its Affidavit-in-Opposition and Supplementary Affidavit, relied upon two General Diary entries vide entry No.1337 and 1346 both dated 20th December, 1993 whereby the police authorities tried to bring on record that they rendered assistance to the Joint Administrators appointed by this Hon'ble Court in handing over possession of demised premises Nos.35, 36 and 36/1, Circular Garden Reach Road, Kolkata - 700 023 in favour of the Lessee. However, the said entry shows the signatures of the givers, that is, the Joint Administrators and police personnel but the signature of the recipients is missing.
As a general practice if there is actual delivery of possession both the parties, i.e., givers and recipient must have signed on the General Diary Book. The entries made in the G.D. Book cannot be relied upon. Such entries are not document of possession and no reliance can be placed on them.
The learned Senior Counsel has relied upon the decisions in Prasanna Kumar Roy Karmakar Vs. State of West Bengal & Ors. reported at AIR 1996 SC 1517 and Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. & Ors. reported at (1996) 4 SCC 144 and submitted that the writ petitioners could not have been dispossessed from the property without due process of law.
The learned Senior Counsel has also relied upon a decision of the Hon'ble Supreme Court in National Thermal Power Corporation Ltd. Vs. Mahesh Dutta & Ors. reported at (2009) 8 SCC 339 Paragraph 16 for the proposition that if an issue is raised with regard to possession of the land, there is no law denying or debarring High Court from entering into a disputed question of fact in a proceeding under Article 226 of the Constitution of India.
The State respondent authorities and the private respondents have filed their respective affidavits.
In the affidavits, a preliminary issue was raised with regard to the maintainability of the writ petition. It is contended that the writ petition involves an adjudication of right, title and interest of the petitioners in respect of the premises in question and the writ court is not the appropriate forum to decide such disputed questions of facts and title.
The respondent Nos.1 to 4 in their Affidavit-in-opposition and supplementary affidavit referred to the earlier orders passed in connection with the premises in question. It was stated that the writ petitioners have failed to demonstrate that they were, in fact, in actual physical possession of the premises in question on 24th November, 2014.
The summary of the events stated in the affidavit and the supplementary affidavit are stated hereinafter.
The said Premises Nos.35, 36 and 36/1, Circular Garden Reach Road, Kolkata - 700 023 (presently named and numbered as 35A, 35B and 36B, Karl Max Sarani) is situated within the limits of Watgunge Police Station (hereinafter, for the sake of convenience, referred to as the "the said properties"). The said properties comprise a part of the Hooghly Imambara Estate under the control of a Management Committee. The grievance raised in the writ petition pertains only to premises Nos.35A and 35B, Karl Marx Sarani (previously known as 35, Circular Garden Reach Road).
In a proceeding, concerning the administration of the properties of Hooghly Imambara by an order dated September 9, 1988 passed in Appeal No.787 of 1988 (Syed Jafa Hussain & Ors. Vs. Sayed Hamid Hossain & Ors.) arising out of Matter No.1098 of 1988, the Hon'ble Division Bench was pleased to discharge the Administrators previously appointed and appointed Sardar Amjad Ali and Mr. Nazim Ali Mirza, Advocates, as Joint Administrators and confer upon them the authority to act as administrators for the purpose of managing the affairs of the Hooghly Imambara Estate.
By a subsequent order dated 26th March, 1992, the Hon'ble Division Bench was pleased to direct the Officer-in-Charge, Watgunge Police Station to render police assistance to the aforesaid Joint Administrators to enable them to protect the interests of the said properties.
On or about August 13, 1993 the Hon'ble Division Bench was pleased to grant liberty to the Joint Administrators to cause advertisements to be published in newspapers to invite objections to the proposal for settling properties belonging to the Estate and to place the objections that may be received before Court. By an order dated October 1, 1993 this Hon'ble Court approved the offer of the private respondent. The order, inter alia, directed that:
i. The Officer in Charge, Watgunge Police Station would render assistance to the joint administrators in handing over physical possession of the said properties to the private respondent. ii. The Deputy Commissioner of Police, Port Division, Kolkata Police would also render necessary assistance to the joint administrators to ensure implementation of the order.
The order dated October 1, 1993 was thereafter modified by an order dated November 16, 1993. In terms of the aforesaid orders, necessary police assistance was duly provided by the Police Authorities. The D.C. Port duly rendered appropriate assistance to the Joint Administrators as directed by the Hon'ble High Court.
The private respondent took possession of the said premises on December 20, 1993 in the presence of police officers of the Watgunge Police Station.
By the aforesaid order dated November 16, 1993 passed by the Hon'ble Division Bench in Appeal No.787 of 1988 in connection with Matter No.1940 of 1988 the D.C. Port was specifically directed to give assistance to the Joint Administrators to implement the earlier order dated October 1, 1993 as modified by the order dated November 17, 1993. As mentioned hereinabove, on the basis thereof the D.C. Port deputed police force from the Watgunge Police Station to render police assistance in delivering possession of the demised premises Nos. 35, 36 & 36/1, Circular Garden Reach Road, Kolkata to M/s. Vora Fasteners Pvt. Ltd. through the Joint Administrators of the Hooghly Imambara Estate. The General Diary Book dated December 20, 1993 contains records relating to the fact that an officer of the Watgunge PS had rendered police assistance to the Joint Administrators at the time of delivering vacant possession of the aforesaid premises on December 20, 1993.
From the record, it further transpires that subsequently by an order dated January 25, 1994 also passed by the Hon'ble Division Bench in Appeal No.787 of 1988 in connection with Matter No.1940 of 1988 the D.C. Port was directed to post police picket at the cost of M/s. Vora Fasteners Pvt. Ltd. On the basis thereof police picket was posted at the aforesaid premises at that time.
However, there have been continued disputes between the Management Committee of the Hooghly Imambara Estate and the private respondent.
In or about March, 2011 the Watgunge PS had the occasion to visit the said premises in connection with an allegation of unauthorized constructions. The Watgunge PS on making enquiries on March 26, 2011 found illegal constructions being undertaken at the said premises by Vora Fasteners Pvt. Ltd. and their representative Sudarshan Bagri. The extract of the General Diary Book dated March 26, 2011 duly records the GD Entry No. 3419 dated March 26, 2011. The GD Entry records the detailed enquiry carried out by the Watgunj PS receiving the complaint when M/s. Vora Fasteners Pvt. Ltd. and the principal accused of Vora Fasteners Pvt. Ltd. viz. Sudarshan Bagri were found to be carrying on illegal constructions at the said premises. On the basis of inspection and ascertainment of fact that constructions are illegal, proceedings were instituted under Sections 392 & 610 of the Kolkata Municipal Corporation Act. As per procedure the commission of offence was duly recorded in Petty Case Register dated March 26, 2011. On the basis thereof the offence was compounded by payment of penalty.
In or about January 19, 2014 and January 20, 2014 the private respondent made representations about threats and breach of peace.
An application being M.P. Case No.86/14 was filed by the petitioner No.2 before the Learned 1st Executive Magistrate at Alipore under Section 144 of the Criminal Procedure Code. An order was passed in the said application directing the Watgunge Police Station to submit a report. The case was ultimately dropped due to non prosecution by an order dated February 21, 2014 passed by the learned Magistrate.
An application under Section 144 (2) of the Criminal Procedure Code (being M.P. Case No.204 of 2014) was filed by the private respondent on March 4, 2014 against the petitioner No.2 in the Court of the Learned Executive Magistrate at Alipore.
The private respondent filed a further application under Section 144 of the Criminal Procedure Code to prevent breach of peace. Such application was registered as M.P. Case No.767 of 2014.
The private respondent intended to perform a social function and puja at the said premises. The private respondent informed the local police authorities about the event by a letter dated April 28, 2014.
However, the tension at the locale did not subside. The private respondent addressed a letter to the Commissioner of Police at Lalbazar on May 17, 2014 seeking his immediate intervention in the manner.
A meeting was also held in such regard at the office of the Assistant Commissioner of Police - 1, Port Division on May 20, 2014.
A complaint was lodged with the Watgunge Police Station at about 6.04 pm on November 8, 2014. In the complaint it was alleged that on Sk. Asgar along with several other persons armed with weapons were forcibly trying to enter into the said premises by assaulting the security guards posted thereat. On the basis of such complaint an FIR being FIR No.431 of 2014 was registered by the local police authorities.
A complaint was also lodged by the petitioner no.2 on November 9, 2014 making complaint against Ashok Kumar Banka, one of the security guards of the private respondent and Sudarshan Bagri. From the aforesaid, it would be apparent that the situation had escalated.
A fair amount of tension was prevailing around the aforementioned premises since early November 2014 due to which occasional police pickets were posted from time to time near the said premises and from November 8, 2014 in front of the premises to prevent incidents of breach of peace and to maintain the law and order situation around the area.
The Watgunge Police Station, during this period, had deployed police personnel at the main entrance of the said premises for maintenance of peace.
On November 24, 2014 complaints and FIRs were lodged by the private respondent with regard to physical violence by persons allegedly affiliated with the writ petitioners; scuffling and unlawful assembly on the road facing the main entrance of the said premises. On November 24, 2014 itself the representatives of M/s. Vora Fasteners Pvt. Ltd. stated that they were being prevented from entering the premises by some unknown miscreants. The main door of the premises No.35, CGR Road was lying closed with lock and key since the time of posting picket. The representative of M/s. Vora Fasteners Pvt. Ltd. claimed that the keys of the locks were misplaced. They arranged for breaking open the padlocks. Accordingly the representatives of M/s. Vora Fasteners Pvt. Ltd. were allowed to break open the padlocks. The police authorities present there were aware of the CCTV camera as placed high above ground level on the nearby KMC light post. The police acted on the basis of the record and all available information and there was no attempt on the part of the police authority to shield the action taken in broad daylight. The writ petitioners made a representation before the Commissioner of Police after about a fortnight i.e. on December 9, 2014. This was followed by the writ petition filed in January, 2015. After a gap of about almost a fortnight i.e. December 9, 2014, a representation was made to the Commissioner of Police by the petitioners.
From time to time orders were passed by the Court directing the Police Authorities to produce the General Diary Book, Watgunge Police Station containing entries on 24th November, 2014 and file a report with regard to the possession of the property at the time of the alleged incident and also to identify the policemen seen in Khaki uniforms in the photographs filed by the petitioners. The reports have been filed in compliance of the said orders.
Mr. Samrat Sen, learned Senior Counsel appearing on behalf of the Police Authorities submits that the events mentioned in the affidavit-in- opposition as also in the supplementary affidavit would clearly establish that there are serious disputed questions with regard to the title asserted by the writ petitioners as well as the private respondent in respect of the premises in question. The manner of devolution of title of the litigating parties to the said premises lead to serious inconsistencies and contradictions in the conflicting claims of the parties to have or to be entitled to exercise any right, title and interest in the said premises as owner thereof. While the title of the litigating parties to the said premises is in serious dispute, there appears to be little or no dispute or doubt that on November 24, 2014 and at all material times prior thereto it was the respondent No.5 which was in physical possession of the said premises.
It is submitted that in view of the conflicting claims to title to the immovable property between the litigating parties this Hon'ble Court sitting in its writ jurisdiction would exercise its discretion to refrain from interfering in the matter of granting any relief sought by the writ petitioners.
The learned Senior Counsel has placed reliance in this connection on the following decisions:-
(i) State of Rajasthan v. Bhawani Singh reported in 1993 Supp (1) SCC 306 Paragraph 7;
(ii) Mohan Pandey v. Usha Rani Rajgaria reported in (1992) 4 SCC 61 Paragraph 6;
(iii) P.R. Murlidharan v. Swami Dharmananda reported in (2006) 4 SCC 501 Paragraphs 12-19;
(iv) Moran M. Baselios Marthoma v. State of Kerala reported in (2007) 6 SCC 517 Paragraphs 7,9,10,12,15.
It is also submitted that this Hon'ble Court would be pleased to refrain from entertaining the writ petition alleging police inaction in view of efficacious relief available under Chapter XV of the Criminal Procedure Code before the Magistrate.
The learned Senior Counsel has placed reliance in this connection on the following decisions:-
(i) Hari Singh v. State of U.P. reported in (2006) 5 SCC 733 Paragraphs 2-6;
(ii) Gangadhar Janardhan Mhatre v. State of Maharashtra reported in (2004) 7 SCC 768 Paragraphs 6-14;
(iii) Aleque Padamsee v. Union of India reported in (2007) 6 SCC 171 Paragraphs 7 & 8;
(iv) Lipika Bose v. State of West Bengal reported in (2004) 2 CLT 506 Paragraphs 5, 15-20.
It is submitted that in the event the writ petitioners were, as claimed by them, illegally dispossessed of immovable property without their consent and otherwise than in due course of law the writ petitioners could have, notwithstanding any other title that may be set up by anyone else, instituted civil proceedings under Section 6 of the Specific Relief Act against the respondent No.5. The writ petitioners could have availed the remedy of a summary suit under Section 6 of the Specific Relief Act. The enquiry under the aforesaid provision is confined only to finding out the factum of possession and dispossession within a period of six months from the date of institution of the suit, ignoring the question of title. If the writ petitioners were unsuccessful in a summary suit under Section 6 of the Specific Relief Act, their remedy was and is to file a regular suit establishing their title to the said premises and seeking khas possession from the trespasser.
The learned Senior Counsel has placed reliance in this connection on the following judgment:-
(i) ITC Limited v. Adarsh Cooperative Housing Society Ltd.
reported in (2013) 10 SCC 169 Paragraphs 9 & 10;
It is submitted that for inexplicable reasons the writ petitioners did not seek to avail of the summary remedy under Section 6 of the Specific Relief Act. The writ petitioners have also not availed of the remedy of instituting a regular suit for declaration of their title to the said premises and for obtaining khas possession thereof. In such circumstances, it is submitted that the Hon'ble Writ Court would refrain from entertaining the writ petitioner.
It is argued that even according to the case made out by the writ petitioners in the writ petition, they have only a meagre share in the said premises. From the pleadings in Paragraphs 1-8 of the writ petition it would appear that Sk. Golam Nobi and his former wife Hurjan Bibi came to purportedly own the property wherein the said premises is situated. The brother and sister of Sk. Golam Nobi, viz. Sk. Mohiuddin and Jahanara Begam are also part owners of the said property. Such persons have not come to support the writ petitioners. Razia Khatoon is the second wife of Sk. Golam Nobi. Razia Khatoon and Sk. Golam Nobi had 6 (six) sons and 4(four) daughters. Only Razia Khatoon and one of her sons, Md. Shakil have applied as petitioners for seeking restoration of possession of the said premises. None of the other heirs or legal representatives of Sk. Golam Nobi or the other branches of the extended family who purportedly have right, title and interest in the said premises seek to support the writ petitioners.
The photographs taken and the video clipping made by the writ petitioners show the said premises from an elevated point outside the main entrance. There is nothing on record to establish any sign of the writ petitioners having been in possession of the said premises.
The incident has been described in Paragraph 32 of the writ petition as being true to the knowledge of Md. Shakil. Md. Shakil was not at the site at all and he could not have had any knowledge of the event.
Pursuant to the orders passed by this Hon'ble Court, report dated June 19, 2015 under the signature of the Joint Commissioner of Police (A.P.), Kolkata Police has been filed in this Hon'ble Court.
The submission of the learned Senior Counsel is summarized below:-
a) There are serious disputes with regard to the title of the litigating parties to the said premises. The writ petitioners are unable to establish, even prima-facie, their title to or any right or interest in connection with the said premises in respect of which relief is claimed from the writ court.
b) The writ petitioners are unable to demonstrate or establish that they were in physical possession of the said premises prior to or on November 24, 2014.
c) The orders passed from time to time by this Hon'ble Court led to the irrefutable and impossible conclusion that the respondent No.5 was put in possession of the said premises pursuant to the orders passed by this Hon'ble Court.
d) The incidents of November 24, 2014 referred in the writ petition do not make out the commission of any cognizable offence or any inaction or over action by police.
e) Razia Khatoon and her son Md. Shakil stand isolated even in her own family as none of the other heirs of Late Sk. Golam Nobi have joined in or supported the writ petitioners.
f) The writ petitioners have filed the writ petition in order to circumvent and by-pass legal proceedings which ought to have been instituted in a civil court.
g) In the unlikely event that it is held that there has been any inaction or over action by the police, the writ petitioners have an efficacious remedy before the Learned Magistrate. The Learned Magistrate has not been approached at all for remedial measures.
In such circumstances, it is submitted that the writ petition may be dismissed.
The private respondent has also filed an affidavit-in-opposition. In the affidavit-in-opposition, the private respondent contended that the order dated 26th March, 1992 passed in Appeal No.787 of 1988 records that the land located at 35, 36 and 36/1, Circular Garden Reach Road was vacant land. This clearly shows that this Hon'ble Court had, when passing the order dated 26th March, 1992, proceeded on the basis that the land forming the subject matter of the instant writ petition was vacant at the time of passing of the order dated 26th March, 1992.
Advertisements were published by the Joint Administrators on 17th August, 1993 in the daily issue of the Bartaman, 21st August, 1993 in the daily issue of the Telegraph and 23rd August, 1993 of the daily issue of Anand Bazar Patrika, pursuant to order dated 13th August, 1993 of the Division Bench of this Hon'ble Court inviting objections to the proposal of settling the property of the Hooghly Imambara Estate the subject premises were mentioned in such advertisements. The writ petitioners did not file any objections pursuant to such advertisement before the Joint Administrators. This necessarily implies that the writ petitioners were not objecting to lease being granted in respect of such property to any person and were not claiming any interest in such property. This inference is required to be drawn as the advertisements issued by the Joint Administrators clearly mentioned "any person claiming any interest may contact within a week".
A lease deed dated 12th November, 1993 between the Committee of Management of Hooghly Imambara Estate represented by the Joint Administrators and respondent No.5 in respect of the subject property was executed in favour of the respondent No.5 and possession of the same was obtained by the respondent No.5 with Police help as recorded in the General Diary of the Police authorities on 20th December, 1993 pursuant to the order dated 1st October, 1993 of the Division Bench of this Hon'ble Court passed in Appeal No.787 of 1988.
Pursuant to an order dated 25th January, 1994 passed in Appeal No.787 of 1988 police picket was directed to be posted at the cost of respondent No.5 in the subject premises. This can only mean that respondent No.5 was then in possession of the subject premises.
The respondent No.5 has paid rent to the Hooghly Imambara Estate in respect of the subject premises and has also incurred expenses on posting of security guards at the subject premises. The respondent No.5 would not have done so had not respondent No.5 been in possession.
The respondent No.5 has pursuant to orders of this Hon'ble Court had mutation effected in its favour as lessee in respect of the subject premises. It may be noted that the writ petitioner was a party in WP No.1123 of 2010 on being added as party to such proceedings by the order dated 10th September, 2010. The order dated 20th September, 2012 records the fact that it was for writ petitioner to establish its right, title and interest on the premises. An appeal from this order filed by the writ petitioner along with an application for condonation of delay of 826 days on the basis of false averments. The same was not pursued by the writ petitioner and as such was dismissed by an order dated 16th February, 2016.
An advertisement was issued by the respondent No.5 claiming to be in possession of the subject premises on 10th September, 2013. No objection was raised to such advertisement by the writ petitioner. This clearly shows that the writ petitioner was not in possession of the premises.
On 17th January, 2014, the respondent No.5 received a copy of an application filed under Section 144 of Criminal Procedure Code by writ petitioner No.2 being MP Case No.86 of 2014 which case was ultimately dropped after submission of Report by an order of February 21, 2014.
From January 19, 2014 till about November, 2014, the respondent No.5 had filed several complaints with the police authorities apprehending disturbance at the subject premises. In all these complaints and/or FIRs possession of the subject premises was asserted by the respondent No.5. The respondent No.5 also filed proceedings under Section 144 of the Criminal Procedure Code in which the Police Report dated 4th March, 2014 recorded the fact that the respondent No.5 was in possession of the subject premises. This document has also not been assailed by the writ petitioner.
The writ petitioners have also sought to file complaint with police authorities from January 16, 2014 till 9th December, 2014 against the respondent No.5. The complaint of 9th December, 2014 contains inconsistent statement as to possession.
The filing of such complaints and steps taken pursuant to the same show that there were rival claimants to possession of the premises and that police Reports in proceedings under Section 144 of Criminal Procedure Code had found the respondent No.5 to be in possession. Apart from the same, the Police records also disclosed that the respondent No.5 was made over possession of the subject premises on 20th December, 1993 and thee is no evidence to the effect that the respondent No.5 had ever been dispossessed.
The Police Authorities had also found the respondent No.5 to be in possession when inspection by Police authorities had revealed work been carried out in violation of the provisions of the Kolkata Municipal Corporation Act.
Apart from a new Trade Licence dated 25th August, 2014, and that too only in respect of premises No.35B Karl Marx Sarani, no prima facie evidence of possession has been adduced by the writ petitioner. Significantly, there is no CCTV footage referred to in the pleadings to evidence recording of "car parking" business being carried on by the writ petitioner in the subject premises.
The order of the Division Bench of this Hon'ble Court dated 28th January, 2016 while disposing of an application being G.A. No.1929 of 2015 filed by the writ petitioner for intervention in Appeal No.787 of 1988 and for recalling the order dated 1st October, 1993, has clearly found that the writ petitioner is required to establish her interest in the subject property in a proper forum.
Mr. S.N. Mookherjee, the learned Senior Counsel appearing on behalf of the private respondent submits that the aforesaid facts and circumstances clearly show that the reliefs prayed for in the writ petition require adjudication of disputed questions of both title and possession. Further, the facts and circumstances enumerated above show that this Hon'ble Court has required the writ petitioner to establish title to the subject premises before the appropriate forum. The Writ court cannot be such appropriate forum. In view of the same, the writ petition ought to be dismissed.
It is submitted that the contention made by the writ petitioner that by virtue of the order dated 2nd April, 2015, the private respondent cannot claim any right to the said premises is misplaced by reason of the fact that the writ petitioner had on the basis of the same order sought to intervene in a disposed of appeal being Appeal No.787 of 1988 where by an order dated 28th January, 2016 as corrected on 10th March, 2016, the writ petitioners were not granted any relief but the Hon'ble Division Bench required the writ petitioner to establish title to the property before the appropriate forum. This fact has not been deliberately brought to the notice of this Court.
It is submitted on behalf of the private respondent that the photograph annexed to the supplementary-affidavit filed by the writ petitioner in respect of their contention that the private respondent was put to possession by the police authorities cannot be accepted for the following reasons:-
i) The photograph, do not show that the police authorities have used any gas cuter themselves; instead the photograph show that the police were present when representatives of the respondent No.5 used the gas cutter.
ii) Police could not have proceeded on the basis that the writ petitioner was in possession of the subject premises as, as per police records referred to above from as early as 20th December, 1993, the respondent No.5 have been in possession of the subject premises and this fact has been corroborated by two subsequent findings of the police authorities in their report dated 4th March, 2014 and on 26th March, 2011.
iii) Police Report dated 4th March, 2014 shows the respondent No.5 to be in possession.
iv) Photographs taken between May, 2014 and October, 2014 from within the subject premises show one of the directors of the respondent NO.5 within the premises.
v) The writ petition itself contains inconsistent allegations. In paragraph 17 page 18 of the writ petition, the writ petitioner has asserted that writ petitioner has been in possession of subject premises since 1980 upto the middle of the month of December, 2014. However, in paragraph 32 pp.28 & 29 of the writ petition, the writ petitioner has sought to make out a case of being dispossessed on 24th November, 2014.
vi) In the letter dated 9th December, 2014 where dispossession has been claimed by the writ petitioner, the petitioner has also made a statement to the effect that the writ petitioner is still in possession.
vii) In this letter of 9th December, 2014 the writ petitioner has also accepted that disputes are of civil nature.
viii) The letter is clearly an afterthought as it has been written after a fortnight of the alleged dispossession.
It is submitted that reliance placed by the writ petitioner on a document dated 24th November, 2014 purportedly containing communication from 1:42 A.M. to contend that there is a conspiracy between the private respondent and the police authorities to take over possession of the said premises later on the same day is not supported by any affidavit. Moreover, it was not unreasonable for the police authorities to have the information recorded in this communication as the fact of the case shows that the petitioner and the respondent No.5 were filing rival complaints and, in fact, the writ petitioners had not established any right to the property and was not in possession but had lodged a complaint only on 21st November, 2014.
It is submitted that it is a duty of the police to ensure that no breach of peace takes place. Discharge of statutory duty of the police cannot be read as acts of collusion and conspiracy between the police and the private respondent.
In dealing with the cases cite by the writ petitioners, it is submitted that decision Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. & Ors. reported in 1996 (4) SCC 144 has no application as the said proceeding did not arise out of a writ petition inasmuch as the appellant therein admittedly was inducted as a tenant. It would also clearly show that the appellant was in possession of the property in question and, accordingly, his possession could not be disturbed without any order or decree of Court. In the instant case, the possession of the writ petitioners is in dispute. The private respondent has categorically asserted that the respondent has been in possession pursuant the lease and orders passed by this Court. It is further submitted that the decision Prasanna Kumar Roy Karmakar Vs. State of West Bengal & Ors. reported at AIR 1996 SC 1567 is also not applicable and instead re-enforces the submission of the private respondent that the writ petitioner should be dismissed. In that case the Supreme Court set right the situation which had developed, i.e., a private dispute had come to the Writ Court which dispute was between landlord and tenant and pursuant to orders passed by Writ Court landlord had obtained possession of the subject premises with Police help. This kind of a case was deprecated by the Supreme Court wherein the Supreme Court had also said that the scope of the writ jurisdiction was limited.
In fact, by reason of the disputed question of fact and law involved in the instant case, the writ petition should be dismissed.
In this connection the learned Senior Counsel has placed reliance on the following decisions:-
a) 2006 (4) SCC 501 (P R Murlidharan & Ors. VS. Swami
Dharmananda Theertha Padar & Ors. at Paragraph 17);
b) 2007 (6) SCC 517 (Moran M Baselios Marthoma Mathews II &
Ors Vs. State of Kerala & Ors. at Paragraphs 11 & 15);
c) 2015 (5) SCC 321 (State of Assam Vs. Bhaskar Jyoti Sharma
& Ors. at Paragraphs 13).
The private respondent accordingly has prayed for dismissal of the writ petitioner.
The petitioner perhaps would like to contend that overzealous, over- enthusiastic and proactive Police force has dispossessed the writ petitioners from the premises in question and would like to borrow the famous lines of Will Durrant in The Pleasures of Philosophy which reads:-
"The Thrasymachus of (Plato's) Republic proclaimed to the world that 'might is right', and justice merely the interest of the stronger; the 'unjust' is lord over the truly simple and just, and the 'just' is always loser by comparison to support and sustain its claim for restoration of possession.
It is the conflict of 'just' and 'unjust' which needs to be resolved. It needs to be ascertained if Police authorities were instrumental in dispossessing the writ petitioners from the concerned property. There is a much larger issue which needs to be addressed before any enquiry is made in this regard as to whether the writ petitioners were ever in possession."
On the basis of the materials on record, it appears that the Hooghly Imambara Estate has claimed ownership over the said property.
The grievance raised in the writ petition pertains to a portion of the property of which Hooghly Imambara claims ownership.
In a proceeding, concerning the administration of the properties of Hooghly Imambara by an order dated September 9, 1988 passed in Appeal No.787 of 1988 (Syed Jafa Hussain & Ors. Vs. Sayed Hamid Hossain & Or.) arising out of Matter No.1098 of 1988, the Hon'ble Division Bench was pleased to discharge the Administrators previously appointed and appointed Sardar Amjad Ali and Mr. Nazim Ali Mirza, Advocates, as Joint Administrators and confer upon them the authority to act as administrators for the purpose of managing the affairs of the Hooghly Imambara Estate.
By a subsequent order dated 26th March, 1992, the Hon'ble Division Bench was pleased to direct the Officer in Charge, Watgunge Police Station to render police assistance to the aforesaid Joint Administrators to enable them to protect the interests of the said properties.
On or about August 13, 1993 the Hon'ble Division Bench was pleased to grant liberty to the Joint Administrators to cause advertisements to be published in newspapers to invite objections to the proposal for settling properties belonging to the Estate and to place the objections that may be received before the Court. Prior to the execution of the Deed of Lease, advertisements were published by the Joint Administrators on 17th August, 1993 in the daily issue of the Bartaman, 21st August, 1993 in the daily issue of the Telegraph and 23rd August, 1993 in the daily issue of Anand Bazar Patrika, pursuant to order dated 13th August, 1993 of the Division Bench of this Hon'ble Court inviting objections to the proposal of settling the property of the Hooghly Imambara Estate in which the subject premises were also mentioned in such advertisements.
The advertisements issued by the Joint Administrators clearly mentioned "any person claiming any interest may contact within a week". The writ petitioners did not file any objection pursuant to such advertisement before the Joint Administrators.
The Hon'ble Court by an order dated October 1, 1993 approved the offer of the private respondent and directed the Officer-in- Charge, Watgunge Police Station to render assistance to the joint administrators in handing over physical possession of the said properties to the private respondent. The Deputy Commissioner of Police, Port Division, Kolkata Police was further directed to render necessary assistance to the joint administrators to ensure implementation of the order.
The order dated October 1, 1993 was thereafter modified by an order dated November 16, 1993. In terms of the aforesaid orders, necessary police assistance was duly provided by the Police Authorities. The D.C. Port duly rendered appropriate assistance to the Joint Administrators as directed by the Hon'ble High Court.
The private respondent appears to have taken possession of the said premises on December 20, 1993 in the presence of police officers of the Watgunge Police Station.
The order dated November 16, 1993 passed by the Hon'ble Division Bench in Appeal No.787 of 1988 in connection with Matter No.1940 of 1988 directed the D.C. Port to give assistance to the Joint Administrators to implement the earlier order dated October 1, 1993 as modified by the order dated November 17, 1993. On the basis thereof the D.C. Port deputed police force from the Watgunj Police Station to render police assistance in delivering possession of the demised premises Nos. 35, 36 & 36/1, Circular Garden Reach Road, Kolkata to M/s. Vora Fasteners Pvt. Ltd. through the Joint Administrators of the Hooghly Imambara Estate. The General Diary Book dated December 20, 1993 contains record which would show that an officer of the Watgunge PS had rendered police assistance to the Joint Administrators at the time of delivering vacant possession of the aforesaid premises on December 20, 1993.
Subsequently by an order dated January 25, 1994 also passed by the Hon'ble Division Bench in Appeal No.787 of 1988 in connection with Matter No.1940 of 1988 the D.C. Port was directed to post police picket at the cost of M/s. Vora Fasteners Pvt. Ltd. On the basis thereof police picket was posted at the aforesaid premises at that time.
On the basis of the materials on record, it appears that the petitioner was aware that the Hooghly Imambara had executed a deed of lease dated 12th November, 1993 in favour of the private respondent No.5 in the year 1993 concerning the said premises. The record would show that in terms of the lease deed dated 12th November, 1993 possession was given to the respondent No.5 on 20th December, 1993.
The record disclosed by the Police Authorities further shows that in or about March, 2011, the Watgunge PS had the occasion to visit the said premises in connection with an allegation of unauthorized construction. The Watgunge Police Station made an enquiry. During enquiry, it was found that certain illegal constructions were made by the private respondent. The extract of the General Diary Book dated March 26, 2011 reveals the aforesaid fact. The Police Authorities further found that the respondent No.5 and Sudarshan Bagri were present at the said premises and they were found to carry illegal construction at the said premises.
The petitioners in Paragraphs 9, 10 and 14 of the writ petition have admitted the execution of the deed of lease on 12th November, 1993 as also their contemporaneous knowledge of the fact that such deed was executed in terms of the order passed by the Hon'ble Division Bench on 1st October, 1993 and assertion of right of the private respondent on the basis of the said deed of lease. The averments in the writ petition are all verified as true to knowledge. The petitioners in the writ petition contended that the order dated 1st October, 1993 is not tenable in law and the petitioners could have challenged the said order dated 1st October, 1993 before the Hon'ble Supreme Court but the petitioners or their predecessors were never been advised by the then learned Advocates to challenge the said order before the Hon'ble Supreme Court of India at any point of time and by reason thereof the petitioners did not take any steps to challenge the said order. Moreover, it appears that the claim to possession by the petitioners were based on the basis of a trade licence issued on 25th August, 2014 a few months before the alleged incident took place. The nature of trade was described as "office of car parking". The said trade licence is not a document of title. Moreover, an attempt by the petitioners to prevent the respondent No.5 to have their names mutated in their favour did not succeed as it appears that in a writ petition filed by the respondent No.5 challenging the order passed by the Assessor Collector (South) rejecting the prayer for mutation made by the respondent No.5 the authority was directed to mutate the name of the respondent No.5. In the writ petition filed by the respondent No.5 being W.P. No.1123 of 2010 an order was passed on 20th September, 2012 setting aside the order passed by the Assessor Collector (South) with the following observation:-
"Having considered the facts of the case it appears that a lease was executed in November 1993 in favour of the petitioner by the Joint Administrators appointed in Appeal No.787 of 1988. All that the petitioner seeks is grant of mutation as a lessee in respect of the said premises viz. 35A/35B, 36A and 36B, Karl Marx Sarani, Calcutta the renumbering of which has been admitted by the authorities. The order dated 22nd June, 2010 while accepting that mutation will not decide questions of title, it was held that any decision would decide the right title and interest of the parties and therefore no order for mutation was passed till such title was decided. The petitioner by virtue of the Deed of November 1993 is a lessee in respect of the said premises and is not claiming ownership. On the other hand, it is the private respondents who are claiming to be owners contra to the ownership of the Imambara. Therefore, it is for the private respondents to establish their right, title and interest in the said premises. The order by which Joint Administrators were appointed though challenged by the private respondents stands dismissed. The Lease Deed has also not been challenged. Accordingly, the order dated 22nd June, 2010 cannot be sustained in the eye of law and is set aside and the respondent no.3 is directed to mutate the premises in favour of the petitioner within four week from the date of receipt of this order. (emphasis added) This, however, will be subject to any proceedings that may be initiated by the private respondents and will not create a right in favour of the petitioner greater than that vested in the Imambara or Joint Administrators and will be as per the terms and conditions of lease. In view of the aforesaid, this application is disposed of."
The CCTV footage would not show that the writ petitioners were in possession of the property in question or were carrying on Car Parking business from the area from which they were alleged to have been dispossessed. The petitioners say that CCTV was installed prior to alleged dispossession. If the petitioners were to be believed that they were carrying on their Car Parking business inside the premises then the CCTV footage would have disclosed such facts. The agreement for lease, various orders passed concerning the said properties and the record disclosed by the Police Authorities would go to show at least prima facie that the possession was with the respondent No.5. The entry of the respondent No.5 to the premises in question was lawful as the agreement for lease was executed by the Joint Administrators after inviting objections and pursuant to the orders passed by this Court.
The writ proceeding should not be converted to a Title Suit although there cannot be a bar in entertaining such disputes and seek an adjudication in the said proceeding. The question is one of discretion and not of jurisdiction. The writ Court in deciding a matter of like nature could not exercise a discretion in favour of the writ petitioners where on the basis of the affidavit evidence, it would not be convenient for the Court to come to a definite finding about the right, title and interest of the writ petitioners in respect of the property in question. It is only such disputed questions of fact which can be conveniently decided on affidavit evidence that the writ Court would exercise its jurisdiction and discretion in deciding the dispute raised in the writ petition. In the cobweb of disputes surfaced in this proceeding on the basis of the affidavit evidence it is not possible for this Court to come to a conclusion that the writ petitioners have any title over and in respect of the property in question or that they were ever in possession of the property. The possession of the property by the petitioner is itself mired in controversy which requires an adjudication. In the instant case, it cannot be said that the entry of the respondent No.5 into the property was unlawful. An impression is sought to be given that the Police Authorities have facilitated dispossession of the writ petitioners from the property in question. This claim is completely unsubstantiated as the petitioner has failed to demonstrate that they were, in fact, in possession of the property. The dispute with regard to the title of the property is as it seems started sometimes in 1993 and as noticed earlier the writ petitioner in spite of having knowledge of the lease deed conferring leasehold title and interest of the property in question in favour of the respondent No.5 did not challenge the orders or the said deed of lease. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged and only in such a case the Court would issue appropriate direction to the authority concerned. The essential dispute is with regard to the title and possession of the property. The constitutional jurisdiction cannot be invoked and/or used for deciding such disputes for which remedies under the general law is available. This jurisdiction is not intended to replace the remedies available by way of suit or any application available to a litigant. The jurisdiction is special and extraordinary. The question of title and possession of land being the essential disputes cannot be satisfactorily gone into and/or adjudicated in this writ petition. The writ jurisdiction cannot be made a forum for adjudicating civil rights. In this regard the jurisdiction of Civil Courts is wide and plenary. A writ proceeding cannot be a substitute for a civil suit.
On such consideration, this writ petition is dismissed. However, it is made clear that this order shall not prevent the writ petitioners to take appropriate steps in accordance with law to espouse and assert their right, title and interest, if any, in respect of the property in question and the observations made in this order shall not influence the Court or the authority in deciding such dispute if raised in such proceeding by the writ petitioners.
The writ petition being W.P. No.2035 (W) of 2015 is dismissed. In view of the dismissal of the writ petition C.A.N. No.11547 of 2015 also stands dismissed.
However, there shall be no order as to costs.
The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)