Calcutta High Court
Metro Cash And Carry India Pvt. Ltd. vs Sasanka Sanfui And Ors. on 19 April, 2007
Equivalent citations: 2007(3)CHN451, AIR 2007 (NOC) 2488 (CAL.)
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
JUDGMENT Tapan Kumar Dutt, J.
1. A partition suit being Title Suit No. 121 of 1962 is pending in the Trial Court concerned at Alipore and in such suit a receiver has been appointed in respect of the suit properties. The petitioner is not a party in the partition suit. It also appears that a very substantial property is involved in the said partition suit and a large number of persons are parties in the said suit. It also appears that the petitioner is claiming to be a lessee under the proforma respondents i.e. the West Bengal Industrial Development Corporation and the State of West Bengal in respect of a total area of 7.53 acres of land which is a part of the aforesaid suit properties. According to the petitioner the said land which has been let out to the petitioner has been vested in, and/or acquired by, the proforma respondents and that the proforma respondents have perfect title in respect of the said demised land in respect of which the petitioner is a lessee. The petitioner claims that the petitioner is in actual physical possession of the demised land since April/May, 2006 and the construction undertaken by the petitioner on the said land is substantial. It also appears that neither of the proforma respondents are parties to the partition suit. The petitioner has further alleged that the writ petitioner being W.P. No. 13184(W) of 2006 has been filed in the Hon'ble High Court at Calcutta challenging the acquisition proceedings and that such writ petition is still pending. It further appears that by order dated 30.05.2006 an Hon'ble Single Judge of this Court was pleased to give directions for filing of affidavits and also grant an interim order to the effect that "Steps taken, in the meantime, will abide by the result of this writ petition". The petitioner received a letter dated 20,06.2006 from the learned Advocate for some of the plaintiffs in the said suit wherein it was mentioned that the plaintiffs of the said suit for partition filed the suit in the year 1956 being T.S. No. 43 of 1956 which was renumbered as T.S. No. 121 of 1962, that sometime in 1958 one Ranjit Kumar Ganguly, learned Advocate, was appointed a receiver in respect of the suit properties and after the death of the said receiver, one Sri Sankar Sen, learned Advocate, has been appointed a receiver sometime in the year 2000, that steps are to be taken against the said receiver for there was serious allegation against the said receiver as mentioned in the said letter dated 20.06.2006 and it was further alleged in the said letter that many portions of the suit properties have been "illegally occupied and grabbed by the outsiders and/or trespassers by making illegal constructions thereupon and also Govt. of West Bengal has been vesting and making acquisition of many portions of the suit properties, illegally and unlawfully without taking any permission of the Id. Court". It was further mentioned in the said letter that on 16.06.2006 the learned Trial Court ordered inter alia on an application filed by one of the parties to the suit that "All the parties in the suit are hereby directed to maintain status quo in respect of the suit property by restraining themselves from selling, transferring, alienating or otherwise disposing of the suit property between an inter-party or any third party or in any manner whatsoever from changing the nature and character of the suit property till disposal of the suit".
2. It appears that by another order dated 03.07.2006, the learned Trial Court passed an order requesting the Superintendent of Police, South 24-Parganas, Alipore to direct the O/C, Purba Jadabpur P.S. to see that both the parties or their men and agents are maintaining injunction order dated 16.06.2Q06.
3. The petitioners' case is that on 11th February, 2007, the petitioner was shocked and surprised to receive a letter from the Inspector-in-charge, Purba Jadabpur P.S. inter alia directing the petitioner to immediately stop all construction activities in the demised premises. After making enquiries, the petitioner came to learn that the learned Trial Court has passed an order dated 05.02.2007 inter alia disposing of an application dated 19.01.2007 filed by the defendant Nos. 41 ka(1) and 41 ka(4).
4. It is the petitioner's case that on 19th February, 2007 the petitioner was served with a copy of an application filed by the West Bengal Industrial Development Corporation in the said suit praying for vacating and/or setting aside and/or modification of the order dated 05.02.2007.
5. It appears from the order dated 05.02.2007 that the learned Trial Court observed that it would reflect from the record that the parties have been filing one application after another asking for a direction upon the S.P., 24-Parganas (South), Alipore, whereby the parties reminded the Court for giving directions upon the said S.P. for seeing that the 3rd party Metro Cash and Carry India (P) Ltd., that is the petitioner herein, be stopped from carrying on their work in the suit property. The learned Trial Court further observed that the learned Government Pleader on 31.08.2006 by filing an application stated that the suit property mainly Mouza, Barakhola had been vested in the State of West Bengal who gave the same by way of lease to the petitioner herein and therefore the petitioner was justified in carrying on construction work. The learned Court was further pleased to observe that neither the copy of the said application dated 31.08.2006 was served upon the parties nor hearing was done in respect of the said application on the dates fixed and ultimately on 17.11.2006 none appeared on behalf of the Government nor the said application dated 31.08.2006 was served upon the parties despite the fact that the Court gave several reminders to the Government Pleader for serving the copy of the said application upon the parties. It also appears that the learned Trial Court made further observations that the conduct of the Government clearly shows that despite ample opportunity being given to the Government Pleader to do the hearing of the said application dated 31.08.2006, they failed to do so and they showed negligence in moving their application dated 31.08.2006. The learned Trial Court found that the order of status quo passed on 16.6.2006 has been clearly flouted by the third party i.e. the petitioner herein, and the said S.P. concerned has failed to discharge his duties. The learned Trial Court found that it is obvious that the Court cannot be a silent spectator, seeing its own order being flouted conveniently by the third party, i.e. Metro Cash and Carry India (P) Ltd., who is carrying on with its construction work in the suit property and if this is allowed to carry on, the whole purpose of passing an injunction order on 16.06.2006 would be completely frustrated. The learned Trial Court observed that an opportunity is being given to the Government Pleader to move his application dated 31.08.2006 and till such application is heard and disposed of finally, the order of injunction dated 16.06.2006 in respect of the suit property shall prevail. The learned Trial Court ordered that the S.P. South 24-Parganas, Alipore is directed to see that there is strict compliance of the said order dated 16.06.2006 and a copy of the order should be sent to the said S.P. for information and necessary action in this regard.
6. It appears that challenging the said order dated 05.02.2007, a misc. appeal being No. 66 of 2007 was filed by the petitioner before the learned District Judge at Alipore. The learned District Judge by the impugned order dated 23.02.2007, in the presence of the learned Advocate for the caveators, admitted the appeal and directed issuance of notices upon the respondents in the appeal other than the caveators. It appears that the petitioner had filed an application before the learned Lower Appellate Court for stay of operation of the said order dated 05.02.2007 till the disposal of the said appeal. It appears that the learned Advocate for the caveators prayed for sometime to file written objection and the learned Lower Appellate Court fixed 01.03.2007 for hearing the stay matter with an observation that written objection, if any, may be filed in the meantime and that the Lower Court Records be called for.
7. Challenging such impugned order dated 23.02.2007, the petitioner has moved the present application under Article 227 of the Constitution of India.
8. The learned Counsel for the petitioner submitted that in view of the order dated 30.05.2006 passed in the aforesaid writ petition, the petitioner was entitled to make the construction on the land in question. The said learned Counsel submitted that the facts regarding the pendency of the writ proceeding were suppressed by the respondents before the learned Court below and suppressing such' facts the respondents concerned obtained the orders from the learned Court below. It was submitted by the said learned Counsel that the respondents knew about the vesting and such submission was made by reference to the aforesaid writ proceeding. The said learned Counsel also submitted that the respondents knew about the entry of third parties to the suit in the properties in question and reference was made to prayer (f) of the writ petition. The said learned Counsel submitted that the petitioner has invested a huge amount of money in the property in question and that the interim orders granted by the learned Trial Court is not binding on the petitioner. Interim order of injunction and/or status quo passed in the partition suit in which the petitioner is not a party, is not binding on the petitioner. According to the said learned Counsel, the learned Lower Appellate Court should have granted stay of operation of the learned Trial Court's order and the petitioner should have been allowed to carry on the construction on the land in question.
9. The learned Counsel for the proforrna respondent No. 1 (West Bengal Industrial Development Corporation) supported the petitioner and submitted that the State of West Bengal and the proforrna respondent No. 1 are not parties in the partition suit and therefore the status quo order passed by the learned Trial Court is not binding upon the proforrna respondents.
10. Reference was made to paragraph 29 of [State of Punjab (now Haryana) and Ors. v. Amar Singh and Anr.]. Reference was also made to paragraph 24 of (Nookala Setharamaiah v. Kotaiah Naidu and Ors.). The said learned Counsel submitted that no prior notice was served upon the petitioner and/or proforrna respondents before passing of the order of the status quo and as such order has been passed in violation of the principles of natural justice and is therefore a nullity. Reference was made to paragraph 13 of the decision reported at (Ram Swarup and Ors. v. Shikar Chand and Anr.). The said learned Counsel cited (L.D. Meston School Society v. Kashi Nath Misra) for the proposition that where the person for whose benefit an injunction order is prayed for and the person against whom it is to operate, are not parties to the suit in which it is prayed for injunction cannot be issued. A decision reported at (Lt. Governor of Himachal Pradesh and Anr. v. Avinash Sharma) was cited by the learned Counsel for the proforrna respondent No. 1 in support of his submission that after possession has been taken pursuant to a notification under Section 17(1) of the Land Acquisition Act, 1894, the land is vested in the Government and the notification cannot be cancelled nor can such notification be restrained. The next submission made by the learned Counsel for the proforrna respondent No. 1 was that the powers under Article 227 of the Constitution of India can be exercised suo moto and in support of such submission the decision reported at (Satyanarayan Nathany and Ors. v. Union of India) and 1977(1) CLJ 92 (Malay Kumar Bera v. Rabindra Nath Bera) and also the decision reported at 2003(6) Supreme Court Cases 675 (Surya Deb Rai v. Ram Chander Rai and Ors.) were cited.
11. The said learned Counsel referred to the letter dated 20.6.2006 appearing at page 109 of the application under Article 227 of the Constitution of India and submitted that the respondents were fully aware of the acquisition of land by the State of West Bengal and also that constructions were being made on such land. The said learned Counsel submitted that the learned Lower Appellate Court did not consider the question of balance of convenience and inconvenience. The said learned Counsel also submitted that the proforrna respondent No. 1 had made an application in the said partition suit in which following prayer was made: "Under the circumstances it is prayed that your Honour may be graciously pleased to pass necessary order/direction of Pro Inter Se Suo in favour of your petitioner in view of the substantive rights being acquired by the petitioner vis-a-vis Metro, Cash & Carry India Pvt. Ltd. is concerned and also to pass such other necessary order or orders as this Id. Court made deem fit and proper." A copy of the said application appears at page 150 of the application under Article 227 of the Constitution of India. The learned Counsel for the proforma respondent No. 1 submitted that the order of status quo is not binding upon the petitioner and the proforma respondents and as such the petitioner should not be restrained from making any construction on the land concerned.
12. The learned Advocate for the proforma respondent No. 2 adopted the submissions made on behalf of the proforma respondent No. 1.
13. On behalf of the respondent a number of learned Advocate appeared and made their respective submissions on behalf of the respective respondents, each adopting the other respondents' arguments and supplementing to the other respondents' arguments. The following are such submissions which were made on behalf of the respective respondents. It was submitted that the proforma respondent No. 1 had made an application for recalling the orders dated 16.6.2006, 05.02.2007 and 03.07.2006 before the learned Trial Court which has been heard in part by the learned Trial Court and it has been submitted that the said application has not been disposed of as yet. It has been submitted on behalf of the respondents that the learned Lower Appellate Court by the impugned order dated 23.02.2007 had fixed 01.03.2007 for hearing the stay matter which was only a few days away from the date of the impugned order and that the petitioner should not have filed the present application under Article 227 of the Constitution of India in an attempt to by-pass the normal procedure of pressing its application for stay on the date fixed for hearing of the same. It was submitted that interim orders cannot be granted lightly and an interim order, which has the effect of granting the principal relief, should not be granted. In support of such submission, a decision reported in AIR 1985 Supreme Court 330 (Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors.) was referred to. It has been submitted that the jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. It was submitted that in the instant case the learned Lower Appellate Court has not assumed a jurisdiction which it does not have nor has it failed to exercised the jurisdiction which it does have nor the lower Appellate Court has exercises any jurisdiction in a manner not permissible under law nor any failure of justice has been occasioned by the impugned order. In support of such submission a decision reported at (Surya Deb Rai v. Ram Chander Rai and Ors.) was referred to. According to the respondents, the learned Lower Appellate Court should be allowed to hear the appeal and if this Court exercises jurisdiction under Article 227 of the Constitution and deals with the merits of the case which is the subject matter of the appeal, in that event, the appeal pending before the learned Lower Appellate Court would become mfructuous. Since it was submitted by the learned Counsel for the proforma respondent No. 1 that the application dated 31.08.2006 referred to by the learned Trial Court in its order dated 05.02.2007 is not really an application but only a report, it was submitted on behalf of the respondents that in such an event the proper course for the proforma respondent No. 1 to follow would have been to make a proper application before the same Court itself and for such purpose reference was made to a decision reported at (Bhagwati Prasad v. Delhi State Mineral Development Corporation).
14. It was submitted on behalf of the respondents that the receiver appointed in the said suit has not been removed as yet but the application for removal of the receiver was fixed for hearing on 14.03.2007 as would appear from the order dated 05.02.2007 passed by the learned Trial Court.
15. It was submitted on behalf of the respondents that the Court has power to ask a receiver to get a trespasser removed even with the aid of police. Reference was made to a decision reported at AIR 1985 NOC 222 (PAT.) (Nalini Kant Sinha v. Ajoy Krishna and Ors.) in this regard. It was next submitted that a person who disturbs the possession of a receiver appointed by Court is guilty of Contempt of Court. It was also submitted that a third party cannot be allowed to violate the order of the Court and if any third party violates any order of the Court then such third party can held to be guilty of Contempt of Court in appropriate cases. Reference was made to (Jai Prakash Beni Pershad and Ors. v. Ram Sarup and Ors.) and (Vidya Charan Shukla v. Tamil Nadu Olympic Association and Anr.). It was submitted on behalf of the respondents that the Court has power to give appropriate directions for police assistance for the purpose of implementing its orders. Reference was made to (N. Karpagam and Ors. v. P. Deivanaiammal).
16. It has been submitted on behalf of the respondents that the State of West Bengal had made an application for addition of party in the suit but allowed the said application to be dismissed for default. Reference was made to order dated 13.6.1988 passed by the learned Trial Court, copy of which has been annexed to the affidavit-in-opposition by the respondent No. 1. It was also submitted on behalf of the respondents that since a receiver has been appointed in respect of the suit properties the petitioner is required to obtain the leave of the Court. Reference was made to (Everest Coal Co. Put. Ltd. v. State of Bihar and Ors.). It was submitted on behalf of the respondents that the pendency of the aforesaid writ proceeding was brought to the notice of the learned Trial Court and it is incorrect to allege that the fact of pendency of the writ application was suppressed before the learned Trial Court. It was even argued on behalf of the respondents that the misc. appeal which was filed by the petitioner is not maintainable in law.
17. It was further argued on behalf of the respondent that while exercising powers Under Article 227 of the Constitution of India the High Court should not assume the appellate powers. Reference was made to (Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale). It was argued with emphasis on behalf of the respondents that this Court should not interfere with the impugned order in exercise of its jurisdiction under Article 227 of the Constitution of India in the facts and circumstances of the instant case-Reference was made to (Sadhana Lodh v. National Insurance Co.Ltd. and Anr.). Paragraph 7 of the said reports is quoted below:
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision.
18. It has been further submitted on behalf of the respondents that the proforma respondent No. 1 has filed an application for recalling of the orders dated 16.6.2006, 05.02.2007 and 03.07.2006 and such application is still pending hearing.
19. On behalf of the petitioner it was submitted that some of the reported cases cited on behalf of the respondents are distinguishable on facts and, accordingly, such reported decisions should not be applied to the present case.
20. On behalf of the petitioner a decision reported at (Laxmi Chand and Ors. v. Gram Panchayat, Kararia and Ors.) was cited in support of the submission that the Civil Court is devoid of jurisdiction to give declaration on the validity and/or invalidity of the procedure contemplated under the Land Acquisition Act, 1894. Reference was made to (Surya Deb Rai v. Ram Chander Rai and Ors.), particularly, to paragraph 38(3) of the said reports. Since the present application is one under Article 227 of the Constitution of India, paragraph 38(4) may also be referred to. Paragraphs 38(3) and 38(4) are quoted below:
38(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
21. The question in the present case is whether or not the learned Lower Appellate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available has been exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby.
22. From a perusal of the impugned order it appears that the learned Lower Appellate Court has admitted the appeal, directed issue of notices upon the respondents other than the caveators fixing 01.03.2007 for return and appearance, and, since the learned Advocate for the caveators prayed for sometime to file written objection the learned Lower Appellate Court fixed 01.03.2007 for hearing the stay matter. Thus, it appears that the learned Lower Appellate Court fixed the stay matter for hearing after about six days only. Now, if the tests laid down by the Hon'ble Supreme Court in Sadhana Lodh 's case (supra) and Surya Dev Rai's case (supra) for the purpose of exercise of jurisdiction under Article 227 of the Constitution of India are applied, this Court find that there is no reason to interfere with the impugned order. This Court in exercise of jurisdiction under Article 227 of the Constitution cannot act as an Appellate Court. The argument made on behalf of the petitioner and the proforma respondent No. 1 touches the merit of the appeal and this Court feels that at this stage it is not proper for this Court to give a decision on such arguments. It will be for the learned Lower Appellate Court to deal with such arguments, if they are made on behalf of the petitioner and/or the proforma respondents, at the appropriate time. The point raised on behalf of the respondents that the misc. appeal is not maintainable may also be dealt with by the learned Lower Appellate Court if such point is raised before it on behalf of the respondents. Conditions necessary for exercising jurisdiction under Article 227 of the Constitution of India by way of interfering with the impugned order do not exist in the present case. Hence, this Court is not inclined to interfere with the impugned order. This Court makes it clear that this Court has not expressed any opinion on the points raised on behalf of the respective parties touching the merits of the appeal and the learned Lower Appellate Court will be free to decide the misc. appeal pending before it independently, in accordance with law. It is only expected that the learned Lower Appellate Court will make an endeavour to dispose of the application for stay and the misc. appeal in accordance with law as expeditiously as possible. The impugned order is not interfered with. The application under Article 227 of the Constitution of India is disposed of.
23. There will, however, be no order as to costs.
24. Let this order be communicated to the learned Lower Appellate Court below concerned by special messenger and the special messenger costs shall be put in by the petitioner within two days from this date.
25. Urgent xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.