West Bengal Pradesh National Trade ... vs Subrata Mukherjee & Ors on 22 November, 2011

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Calcutta High Court (Appellete Side)

West Bengal Pradesh National Trade ... vs Subrata Mukherjee & Ors on 22 November, 2011

Bench: Jayanta Kumar Biswas

                                                  1



                             In The High Court At Calcutta
                                   Constitutional Writ Jurisdiction
                                           Appellate Side

Present : The Hon'ble Mr. Justice Jayanta Kumar Biswas

                               W.P.No.18215 (W) of 2010
               West Bengal Pradesh National Trade Union Congress & Ors.
                                          v.
                                Subrata Mukherjee & Ors.

        Mr. Saumya Mazumdar
        Mr. Santosh Kumar Ray                                  ...for the petitioners

        Mr. Moni Shankar Chattopadhyay                         ...for the first respondent

Heard on : November 22, 2011 Judgment on : November 22, 2011 The Court: The petitioners in this art. 226 petition dated August 25,2010 are questioning an order dated August 17, 2010 passed by the Executive Magistrate, Sealdah, Kolkata in M.P. Case No.1579 of 2010 under s.144 CrPC.

The order dated August 17,2010 is quoted below:

" Two cases being no. M P 1652/10 and M P 1579/2010 taken up today for hearing. Heard both the Ld. Advocates and both the parties. Perused the PR and other documents. It reveals for PR and submitted documents that the petitioner of this case is the owner of the suit premises. In the above context the order dt.05.08.2010 is modified to the extent that the order dt.19.07.2010 stands and will remain in force again.

Inform O.C. accordingly. These the Put up petition is dispossed of. To 20.09.2010 for next steps."

The first respondent filed an application under s.144(2) CrPC before the Executive Magistrate against one Bimal Ghosh. That was registered as M.P. Case No.1579 of 2010. The order dated July 19, 2010 referred to in the impugned order was passed in that MP restraining Bimal from entering the premises in question. Bimal filed an application under s.144(5) CrPC.

Then one Rahul Tiwari filed an application under s.144 CrPC before the same Executive Magistrate against the first respondent. It was registered as M.P. Case No.1652 of 2010; and on July 27, 2010 the first order was passed in that MP. The order is quoted below:

"............. and to see that the O.P.s are restrained from disturbing the peaceful enjoyment and running of day to day function smoothly by the petitioner and the other functionaries in the suit premises and not to disposses them therefrom and O/C to keep close vigil".

Then the order dated August 5, 2010, also referred to in the impugned order, was passed in that M.P. Case No.1652 of 2010. The order is quoted below:

"This put up petition alongwith the Put up petition of case No.1579 of 2010 are taken up together analogously for hearing.

Vide order passed in Case No.1579 of 2010."

Counsel for the petitioners submits as follows. By the order dated August 17,2010 the Executive Magistrate has unauthorizedly decided a question concerning title to the property that the petitioners are entitled to enter, occupy and use, for the first petitioner, of which the other petitioners are office-bearers, has rented the property.

Correctness of the submission is strongly disputed by counsel for the first respondent. He has submitted that neither the first petitioner has rented any part of the property that is owned and possessed by the first respondent, nor are the other petitioners entitled to enter, occupy or use any part thereof in any capacity.

The order of the Executive Magistrate dated August 17,2010 passed under s.144 CrPC lost its statutory force long ago. Needless to say that things said therein by the Executive Magistrate concerning ownership reflected only his tentative opinions for the purposes of the summary proceedings under s.144 CrPC.

It has been submitted that both the petitioners and the first respondent have already instituted suits before the Civil Court seeking reliefs according to law.

Under the circumstances, I do not find any reason to interfere in the matter in the name of judicial review of the order of Executive Magistrate. Power under art.226 is not to be exercised for serving academic interest that will only be served, if validity of the spent order is decided today.

The petitioners instituting suit are free to seek reliefs according to law from the Civil Court that, needless to say, will decide all questions uninfluenced by anything said by the Executive Magistrate in his orders passed in the two proceedings which were instituted under s. 144 CrPC.

I do not think it is necessary to decide whether, on the facts of the case, it can be said that the petitioners are aggrieved by the order of the Executive Magistrate dated August 17, 2010.

For these reasons, the petition is dismissed. No costs. Certified xerox.

(Jayanta Kumar Biswas,J) sh(c);ab(f).

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