Calcutta High Court (Appellete Side)
Basanta Kumar Bera & Ors vs The State Of West Bengal & Ors on 29 March, 2012
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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29.03.2012.
W.P. No. 5242(W) of 2012
Basanta Kumar Bera & Ors.
Versus
The State of West Bengal & Ors.
Mr. S.N.Ganguly .... For the Petitioners
Mr. S.P.Ghosh ... For the Respondent No.8
Mr. Aloke Ghosh ... For the Respondent No.12
Mr. Sumon Sengupta ... For the State
This writ application is filed by the petitioners for issuing a writ a mandamus against the respondent authorities for restoration of their possession in various places within Sealdah Court Complex after due declaration of the title of the petitioners as licencees. Prayers have also been made in the writ application for declaration that the eviction of the petitioners from the Sealdah Court Complex was unauthorised and illegal and that such action was taken by the respondent authority violating the fundamental right of the petitioners guaranteed under Articles 19 and 21 of the Constitutions read with the provisions of Article 50 of the Constitution of India.
It is submitted by Mr. S.N.Ganguly, learned advocate appearing on behalf of the petitioner that the predecessors of the petitioners submitted an application dated August 12, 1991 before the learned Judge, Small Causes Court, Sealdah for allotment of space for shops/ stalls in their favour within the new court building, Sealdah known as "New Court 2 Building at Sealdah". In response to the above approach the learned District Judge, South 24‐Parganas at Alipore passed various orders for making stop‐gap arrangement allowing the petitioners or their predecessors to carry on different types of business within the New Court Building at Sealdah. It is also submitted by him that some of the petitioners were substituted in places of their predecessors subsequently.
It is submitted by Mr. Ganguly that till that period the petitioners or their predecessors had been carrying on their business at the New Court Building at Sealdah. Suddenly on November 25, 2011 they were evicted at the instance of the respondents nos. 9, 10 and 11 with the help of the Police Authority. According to him, the above action can be taken up for adjudication in an application under Article 226 of the Constitution of India because it is open for a Court sitting in writ jurisdiction to examine the conduct of the respondent authority to dispossess the petitioners from their settled possession.
Mr. Ganguly relies upon the decision of Olga Tellis Vs. Bombay Municipal Corporation, reported in AIR 1986 SC 180; Krishna Ram Mahale Vs. Shobha Venkat Rao reported in AIR 1989 SC 2097; Bholanath Mondal Vs. State of West Bengal reported in 2008(1) CHN 219 and Abhimanya Mazumdar Vs. Superintending Engineer & Anr. Reported in AIR 2011 Calcutta 64 in support of his above submissions.
The above submissions made on behalf of the petitioners are vividly opposed by the learned counsel appearing for the State‐respondents. A preliminary objection is raised 3 by him with regard to the maintainability of the writ application. According to him, disputed question of fact with regard to the right or title of the petitioner for continuing with the possession within the Sealdah New Court Building at Sealdah cannot be decided in an application under Article 226 of the Constitution of India.
He relied upon the decisions of the City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala reported in 2009(1)SCC 168 and United Bank of India Vs. Satyawati Tandon reported in 2010(8)SCC 110.
Appearing on behalf of the respondent no. 12 it is submitted by Mr. Aloke Kumar Ghosh, learned advocate, that the petitioners were carrying on their businesses unauthorisedly without any valid right and title within the New Court Building at Sealdah. On receipt of some information of untoward incidents the respondent authority took the decision not to allow unauthorised persons to carry on business within the new Court Building at Sealdah. According to him, the eviction of the petitioners was the outcome of such decision. It is also submitted by him that the Government is the owner of the property and the competent authority of the Judicial Department of the State of West Bengal could only grant any lease or licence in the above court premises. According to him, no material is brought on record to show that any of the petitioners possessed such authority in support of their claim made in this writ application.
At the very outset the preliminary objection raised on behalf of the State‐ respondents is taken up for consideration. Eastablished right is the foundation of 4 exercising jurisdiction of the Court under Article 226 of the Constitution of India. The High Courts of our country have adopted well known descriptions of the writ of mandamus given in English cases. Reference may be made to the decision of Indian Tobacco Corporation Vs. State of Mandras, repored in AIR 1954 Madras 549 and relevant portions of the above decision are quoted baelow:‐ "(5) It appears clear to us that the prerogative writ of mandamus is not available in this case. The nature of the writ of Mandamus is thus described in Halsury's Laws of England, Hailsham Edn. 2nd Edn. Volume 9, 1269:
"The Writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice: and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual."
Among the conditions precedent to issue of a writ of mandamus the following have a material bearing on the facts of the present cases:
(1) The writ is only granted to compel the performance of duties of a public nature.
It will not accordingly issue for a private purpose, that is to say, for the enforcement of a mere private right (ibid S.1304).
(2) The Court will not interfere to enforce the law of the land by the extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction."
The above concept has been recognised and adopted by the Hon'ble Supreme Court of India time and again. One can hear the echo of the aforesaid principles of law in the matter of Shri Sohan Lal Vs. Union of India reported in AIR 1957SC529. The relevant paragraphs are quoted below :‐ "5. We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would 5 be entering into a field of investigation which is more appropriate for a Civil court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Article 226 of the Constitution such a declaration ought to be made and restoration of the property of Jagan Nath be ordered."
In view of the above this Court is under obligation to ascertain as to whether the writ application is based on an established right of the petitioners to continue with the possession within the new Court Building at Sealdah. Admittedly the sheet anchor of this case is the authorisation in favour of the petitioners or in favour of their predecessors to carry on profession during court hours at the places within the New Court Building at Sealdah during the court hours. Such arrangements were made as a stop‐gap measure to meet the needs of the situation. The State is the owner of the new Court Building at Sealdah. Therefore, the State can only act in accordance with law to lease out or to grant licence in favour of any person to carry on business in any such premises. No material is brought before this Court to show that the authorisation of the then learned District Judge, 24‐Parganas (South) at Alipore in favour of the petitioners as indicated hereinabove was done in exercise of any statutory power or with due authorisation by the State in accordance with law.
In view of the above, I have no hesitation to hold that the right claimed by the petitioners is not an established right or the claim of the petitioners is not based on an 6 established right. Therefore, in a summery proceeding under Article 226 of the Constitution of India, there is no question of enforcing any right in favour o the petitioners.
I find substance made by Mr. Sengupta on behalf of the State‐respondents that without establishment of a right depends upon deciding the issue taken into consideration disputed question of facts a Court sitting in writ jurisdiction cannot step forward to give any relief to the petitioner. Reference may be made to the decision of City and Industrial Development Corporation (Supra) and the relevant portions of the above decision are quoted below :‐ "30. The Court while exercising its jurisdiction under Article 226 is duty‐bound to consider whether -
(a) adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and latches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideation of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter‐affidavit opposing the writ petition. Further, empty and self‐defeating affidavits or statements of Government spokesmen by themselves do no form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."
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I do not find any substance in the submission made by Mr. Ganguly on behalf of the petitioners that the actions taken by the respondent authorities cannot be supported in accordance with law. In a Court of equity the petitioner have failed to prove that the right claimed by them is capable of being established. Unless that onus is discharged he cannot open his mouth wide with regard to the actions taken against him. The decisions Olega Tellies (Supra), Krishna Ram Mahale(supra), Bholanath Mondal(supra) and Abhimanya Mazumdar(supra) do not help the petitioners in any way due to distinguished facts and circumstances of his case.
In view of the discussions and observations made hereinabove, I find that this writ application is not maintainable and the same is dismissed.
There will be, however, no order as to costs.
Urgent photostat copy of the order, if applied for, shall be given to the parties on the usual undertakings.
( Debasish Kar Gupta, J. ) 8