Calcutta High Court (Appellete Side)
Md.Nazmul Alam & Ors vs The State Of West Bengal & Ors on 15 February, 2012
Author: Jayanta Kumar Biswas
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.23468(W) of 2009
Md.Nazmul Alam & Ors.
v.
The State of West Bengal & Ors.
with
C.A.N.No.1666 of 2010
and
C.A.N.No.6826 of 2010
Mr.Sayed Nazmi Hossain .. for the petitioners.
Mr.Jayanta Banerjee
Mr.Susavan Sengupta. .. for the State.
Mr. Hiranmoy Bhattacharya
Mr.Debasis Bhattacharya.. .. for Abdul.
Heard on: February 15, 2012.
Judgement on: February 15, 2012.
The Court:- The CAN No.1666 of 2010 has been filed by one Md.Abdul Khaleque
for his addition in the case as a respondent and the CAN No.6826 of 2010 is also
by him; it is for vacation of the interim order passed in the WP. His case is that the interim order has seriously affected his interest.
Since I have determination to take up the WP under art.226 dated December 21, 2009 for final disposal, I have invited advocates for the petitioners and the State to argue and, accordingly, they have argued the case for final disposal.
The petitioners are seeking the following principal relief:
"a)A writ in the nature of Mandamus be not issued with a direction to the Respondent No.4 to grant Lease as sought for by the petitioners in respect of the plot being No.2307 and 2959 in Mouza Salar, J.L.No.102 within the Jurisdiction of Salar Police Station in the District of Murshidabad by treating the petitioner's application dated 15-12-2009 being Annexure "P-2" to this application forthwith"2
Annexure-P2 referred in prayer (a) is at pp.16-19; it consists of four identical applications - all dated December 15, 2009, of the four petitioners, addressed to the Executive Engineer, Highway Division-II, Berhampur, District- Murshidabad.
The case stated in the applications is this. The unused lands in question are around 55 ft. away from the public road. The petitioners were possessing them for years. They should be let out to them on a long-term lease for business purpose. Hence the Executive Engineer should take steps.
No provision of law empowered the Executive Engineer to whom the applications dated December 15, 2009 were addressed to lease out the lands to anyone. The petitioners called upon the Executive Engineer to exercise a non- existent public law duty or obligation. Their applications were based on non- existent right to lease the lands.
This being the position, inaction, if any, on the part of the Executive Engineer could not and actually did not give the petitioners a cause of action to seek the public law remedy under art.226. Their non-existent right cannot be enforced by the Writ Court commanding the Executive Engineer to exercise a power not conferred on him.
In an affidavit the State it has stated that the lands are not vested lands. If that is the case, no official of the Government can consider the question of leasing them out to anyone. The lands owned by private persons cannot be leased out by the Executive Engineer to the petitioners.
For these reasons, I dismiss the WP. The CANs shall be treated as disposed of. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) 3 sm.