Calcutta High Court
The Bengal Freemasons' Trust ... vs Commissioner Of Police Kolkata And Ors on 10 June, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
WP No.312 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
THE BENGAL FREEMASONS' TRUST ASSOCIATION AND ANR
-Versus-
COMMISSIONER OF POLICE KOLKATA AND ORS.
BEFORE:
The Hon'ble JUSTICE DIPANKAR DATTA
Date : 10th June, 2014
Appearandce:
Mr. Joydeep Kar,. Adv.
Mr. R.L. Mitra, Adv.
Ms. Priyanka Dhar, Adv.
...for the petitioners.
Md. Safiul Alam, Adv.
...for respondent Nos.4 & 5.
Mr. Kishore Dutta, Adv.
Mr. P. Bhuniya, Adv.
...for respondent No.6.
Mr. Sakya Sen, Adv.
Mr. Mirza Firoz Ahmed Begg, Adv.
...for the State.
The Court : The first petitioner claims to be a trust incorporated as a company limited by guarantee within the meaning of the Companies Act. The second petitioner is the Secretary of the first petitioner.
It is pleaded in paragraph 7 of the writ petition that the first petitioner as trustee of the premises situate at 19, Park Street, Kolkata - 2 700 016 (hereafter the said premises) manages and administers the same and carries out all maintenance works and pays municipal and other statutory taxes, charges levies in respect thereof. Paragraph 13 of the writ petition reveals that a Memorandum of Understanding was executed by and between the first petitioner and the fourth respondent authorizing the latter to act as an operating agency for occasionally using the lawn and the hall in the eastern part of the said premises on the ground floor (hereafter referred to as the said portion) for ceremonial purposes. In terms of the said understanding, the first petitioner was to receive certain amounts of money for allowing such user of the said portion. It has further been pleaded that the agreement with the operating agency expired on 31st March, 2009 but despite the same, the operating agency did not vacate the said portion and continued to use the same for commercial purposes.
Various proceedings were initiated to which reference in detail is not required. Suffice it to note that the disputes and differences between the first petitioner and the operating agency were referred to arbitration. The Arbitral Tribunal by its award dated 19th April, 2012, inter alia, held that the first petitioner is entitled to recover possession of the said portion on eviction of the operating agency as well as entitled to sums as mentioned therein.
The award was unsuccessfully challenged by the operating agency by filing a petition under Section 34 of the Arbitration and 3 Conciliation Act, 1996 (hereafter the Act). An appeal thereagainst is pending.
On a subsequent application filed by the first petitioner before the learned Judge, 2nd Bench, City Civil Court at Calcutta under Section 9 of the Act, giving rise to Misc. Case No. 106 of 2013, it was ordered as follows:
"that the instant Misc Case be and the same is hereby considered and allowed on contest. But, considering the facts and circumstances of the case, without cost. Consequently, the respondent is hereby restrained by an order of injunction from holding/arranging any kind of function at premises No.19, Park Street, Calcutta 700 016, and/or receiving any contribution/consideration/donation from any person for holding such function and/or allowing parking of cars in the said premises".
The operating agency carried the order dated 5th December, 2013 in appeal. By an order dated 6th January, 2014, the application for stay in connection with the appeal filed by the operating agency was disposed of by an Hon'ble Division Bench. Relevant portion of the order dated 6th January, 2014 reads as follows:
"The property was given on licence to the appellant for a brief period. The appellant overstayed. The learned Arbitral Tribunal presided over by Sri Chittotosh Mukherjee, former Chief Justice of Bombay High Court directed delivery of 4 possession. The application for setting aside failed. The appeal is pending.
At this juncture the Court below rightly passed an order of injunction restraining the appellant from using the property for commercial exploitation. We do not find any scope to interfere at this stage save and except, the judgment and order impugned herein would abide by the result of this appeal. The parties are directed to maintain status quo in respect of the suit property with regard to ownership and possession till the disposal of the appeal".
Since the operating agency continued to organize ceremonial functions in the said portion, the first petitioner applied under Section 151 of the Civil Procedure Code (hereafter the Code) before a learned Judge of the City Civil Court, giving rise to Misc. Case No. 656 of 2014. By an order dated 20th February, 2014, the application under Section 151 of the Code was allowed by passing the following order:
"Officer-in-Charge, Park Street P.S., Kolkata, is hereby directed to see that the order of injunction as passed in Misc. Case No.106 of 2013 under Order No.14 dated 05.12.13 is properly and duly implemented and enforced in its true spirit. Officer-in-Charge Park Street P.S. is further directed to take all necessary steps in accordance with law in case of any violation of the aforesaid order of this Court by any means whatsoever and to report before this Court without any delay. Let a copy of this order along with a copy of Order No.14 dated 05.12.13 as passed in Misc. Case No.106 of 2013 be 5 sent to the Officer-in-Charge, Park Street P.S., Kolkata for his information and strict compliance".
In the aforesaid factual backdrop, based on the allegation that the police authorities are refusing to take steps in accordance with the orders passed by the Courts referred to above, thereby allowing the operating agency to organize ceremonial functions in the said portion of the said premises, this writ petition dated 31st March, 2014 has been presented before this Court seeking, inter alia, the following relief:
"a) A writ in the nature of Mandamus and/or order of orders and/or direction or directions of like nature commanding the respondent Police Authorities to comply with the aforementioned orders of the Learned City Civil Court at Calcutta and this Hon'ble Court and to enforce the said orders by stopping the respondent nos. 4 to 7 and/or their agents from holding any ceremonies or functions at the lawn and ground floor eastern hall in the main building of premises no. 19, Park Street, Kolkata 700 016.
c) A writ in the nature of Prohibition and/or order or orders and/or direction or directions of like nature prohibiting the respondent Police authorities from refusing to comply with the aforementioned orders of the Learned City Civil Court at Calcutta and this Hon'ble Court and further prohibiting the Police authorities from allowing the responent nos. 4 to 7 and/or their agents to continue to hold functions, 6 ceremonies, etc. at the lawn and ground floor eastern hall of premises no. 19, Park Street, Kolkata 700 016".
These are admitted facts and it would require an extremely strong case to be set up by the respondents in the writ petition to dissuade the Court to grant the relief claimed in the writ petition.
Question is, whether the respondents have been so successful.
Having heard the learned Advocates for the parties at substantial length, I am of the view that the respondents have indeed been successful in demonstrating before the Court that the petitioners are not entitled to any relief on the ground that they have approached the writ court with unclean hands. I quite agree with the respondents that the writ petition suffers from gross suppression of material facts, which disentitles them to exercise of discretion by the court of writ.
It appears from the affidavit-in-opposition filed by the sixth respondent that the said portion of the said premises is the subject matter of Title Suit No.3153 of 2010 before the learned Judge, 5th Court, City Civil Court at Calcutta at his instance against, inter alia, the petitioners; that the sixth respondent had entered into a Memorandum of Understanding with the operating agency, whereby it has been permitted to use the said portion for a period of five years from 1st June, 2010 till 31st May, 2015; that the sixth respondent had applied for temporary 7 injunction in connection with such suit and such application was considered and disposed of by an order dated 8th April, 2011 specifically holding that possession of the said portion (eastern hall with the adjoining lawn) was with him and that status quo in respect of respective possession of the suit premises ought to be maintained to serve the ends of justice; that the first petitioner was one of four appellants who had carried the order dated 8th April, 2011 in appeal before this Hon'ble Court; that by an order dated 16th May 2012, an Hon'ble Division Bench had dismissed the appeal; and that grant of relief as prayed for by the petitioners in this writ petition would result in a severe impediment being created in the working out of the Memorandum of Understanding executed by and between the sixth respondent and the operating agency.
In has been contented that despite being aware of these facts, the petitioners have not disclosed the same in their writ petition. It is true that suppression of any or every fact does not disentitle the party approaching the Court from being granted relief; what is of importance is that the suppression must be of a material fact. In my view, the order passed by the Civil Court on 8th April, 2011, which was affirmed by the Hon'ble Division Bench of this Court dated 16th May, 2012 are material facts which the petitioners ought to have disclosed in the writ petition. I am in further agreement with the submissions made on behalf of the fourth and the sixth respondents that continuing the order of injunction passed earlier on this writ petition would result in the Memorandum of 8 Understanding entered into by and between such respondents being rendered unworkable, despite the fact that the attempt of the petitioners to have the order dated 8th April, 2011 nullified has proved abortive by reason of the order of the Hon'ble Division Bench dated 16th May, 2012.
Mr. Kar, learned Advocate appearing for the petitioners, expressed an apprehension that this order might have an adverse effect on the pending proceedings. The apprehension is totally misconceived. The findings reached hereinabove are only for the purpose of a decision on the writ petition and shall certainly not have the effect of influencing any pending proceeding.
The writ petition stands dismissed. There shall be no order as to costs.
Stay of operation of this order has been prayed for by Mr. Mitra, learned Advocate for the petitioners. The prayer is considered and refused.
Urgent certified photocopies of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
(DIPANKAR DATTA, J.) ss.