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2000 DIGILAW 622 (CAL)

Akbar Ali Mondal v. State of West Bengal

2000-12-08

Dilip Kumar Seth

body2000
JUDGMENT D.K. Seth, J. In this case the petitioner has sought for the quashing of the order of vesting in respect of plot No. 356, C.S. Khatian No. 236, R.S. No. 46, JL No. 39, Mouza Arkapur measuring about 28 decimal (more or less 18 cottas) P.S. Jadavpur, Dist 24 Parganas (South) in connection with a proceeding under the Urban Land (Ceiling and Regulation) Act, 1976 as well as L.A. Case No. 30/76/11/48. The foundation of claim of the petitioner is only an information slip which is Annexure 'A' to this writ petition, where it was mentioned that Abbas Ali Mondal and others are the occupiers of the plot and that the said plot is vested under the Urban Land (Ceiling and Regulation) Act and also affected in L.A. Case No. 30/76/11/.48. The petitioner's claim that this property belonged to the predecessors in interest of the petitioners from whom it has devolved upon them. Mr. Bihani, the learned counsel for the petitioners points out that this plot No. 356 never formed part or component of premises No. 39A, Golam Md. Shah Road, Calcutta. As such this plot can not be treated to have been included in the proceedings before the Urban Land Ceiling Authorities and be vested in connection with the said proceedings. He had denied the title in respect of the said property of anyone else, particularly the Bangur Land Development Corporation Limited which had included the said premises No. 39A, Golam Mahammad Shah Road in their return under section 6(1) of the Urban Land Ceiling and Regulation Act, 1976. He has pointed out from the affidavit in reply to the affidavit in opposition of the competent authority that this plot No.356 was never included in the deed of settlement through which the Bangurs had been claiming its title. He had referred to Annexure 'Y' to the affidavit in reply and pointed out that plot No. 355 was included in the said deed but plot No. 356 was not included therein. Thus the Bangurs can not claim any title in respect thereof. 2. The competent authority had submitted its affidavit-in-opposition through Mr. Soumen Dasgupta, the learned counsel who had pointed out that plot No.356 was included in the Municipal record as premises No. 39A, Prince Golam Md. Thus the Bangurs can not claim any title in respect thereof. 2. The competent authority had submitted its affidavit-in-opposition through Mr. Soumen Dasgupta, the learned counsel who had pointed out that plot No.356 was included in the Municipal record as premises No. 39A, Prince Golam Md. Shah Road and in a proceeding under the Urban Land Ceiling and Regulation Act the said land was vested and notice under section 10(1) was duly issued, but however in view of the interim order despite issuing of the declaration under section 10(3) of the said Act the possession could not be taken. In the said affidavit in opposition the return, submitted by Bangurs involving in the said proceeding, has since been annexed, wherefrom it appears that plot No. 39A, Prince Golam Md. Shah Road was included in S1. No.2 of Part B. However, from the said return it does not appear that premises No. 39A, Prince Golam Md. Shah Road comprised of plot No. 356 or part thereof. 3. Mr. Bihani had insisted that since it is not included either in the deed of settlement as pointed out by him and since it is not spelt out any where from the record that plot No. 356 comprised of premises No. 39A therefore this Court should call for the records to ascertain that whether this plot No. 356 is part of premises No. 39A or as to whether Bangurs are the owners of the said plot No.356 or the petitioners are the owners thereof. 4. Mr. Pradip Ghosh, the learned counsel for C.M.D.A. submits that initially by reason of the interim order of status quo the work on the plot No. 356 was stopped but subsequently having been mislead by a letter conveying that the interim order has been vacated and it is open to the C.M.D.A., to take appropriate action the C.M.D.A. had completed the construction on the said land without appreciating that the interim order passed in this writ petition was not vacated on account of certain misapprehension and misunderstanding. Be that as it may, Mr. Be that as it may, Mr. Ghosh contends that the petitioner having not been able to established prima facie that he is the owner of plot No. 356 or to show that premises No.39A does not comprise plot No. 356, it can not be said that the petitioner has been able to make out a ground for invoking discretionary jurisdiction of Writ Court in respect of the relief claimed by him. According to him, it is only a legal right if shown prima facie to be in favour of the petitioner the writ jurisdiction can be invoked. By way of fishing evidence or through speculation seeking production of documents one is not entitled to maintain a writ petition. He has to show that there are some materials that he has legal right in respect of the property claimed by him. The information slip is neither a document of title nor a document of possession. On the basis there of the writ jurisdiction can not be invoked. He then contends, even assuming that it discloses some amount of right of the petitioners in respect of the plot, still then it remains a disputed question of title in respect of plot No. 356 which has since been included in the proceedings under the Urban Land Ceiling Act, against the Bangurs. In the absence of the Bangurs in these proceedings, this. Court can not go into such question. Any determination in these proceedings would affect the right of Bangurs, which can not be done in their absence. Still then this Court will then take upon itself the exercise of determining the disputed question of title which can be decided through evidence before a Civil Court. Therefore, this writ petition is not maintainable at the instance of the petitioners on the basis of the materials produced before this Court and the interim order passed thereon can not be sustained any further. 5. Mr. Therefore, this writ petition is not maintainable at the instance of the petitioners on the basis of the materials produced before this Court and the interim order passed thereon can not be sustained any further. 5. Mr. Das, the lean red counsel for the added respondents, who had sought to be added in these proceedings, by means of an application for addition of parties, which he claims that should be allowed, because of the reason that his clients had purchased flats constructed on the said plot and despite having deposited the full consideration money in terms of the advertisement issued in 1995, they had not been given possession in view of the interim order in this case and as such they have sufficient interest in the outcome of these proceedings. 6. I have heard the respective learned counsel for the parties at length. 7. The application for addition of parties, filed by Mr. Das, is hereby allowed and the applicants are added as respondents in these proceedings. The names of the added respondents be incorporated in the cause title. The application for addition of parties be treated as affidavit in opposition to the main writ petition. 8. It is an accepted principle of law, established through various decisions, that it is only a legal right upon which the writ jurisdiction can be invoked for infringement of such legal right by an authority within the meaning of Article 12 of the Constitution of India. In this case admittedly, the grievance of the petitioners are against the authorities, about whom there is no dispute that they were authorities within the meaning of Article 12 of the Constitution of India. But then the petitioner has to show that he has a legal right, prima facie, in order to establish that he has a legal right, prima facie, in order to establish that he has locus standi to invoke writ jurisdiction or to maintain it. Admittedly, the writ jurisdiction can not be exercised for the purpose of establishing title to a property when such title is clouded and has to be determined by determining disputed question of fact with regard to such title. In the present case, the petitioner had relied on, for the purpose of making out a prima facie case with regard to his title, upon two information slips. In the present case, the petitioner had relied on, for the purpose of making out a prima facie case with regard to his title, upon two information slips. The first information slip being Annexure 'A' to the writ petition only mentions the name of Abbas Ali Mondal & Ors. as occupiers of the said land. The petitioners are claiming to be the successors of Abbas Ali Mondal & Ors. However, they have not spelt out in the writ petition or in the affidavit in reply as to how they have succeeded to the said Abbas Ali Mondal & Ors. Neither they have disclosed their relation with the said Abbas Ali Mondal & Ors. Be that as it may, the said information slip was issued on 30th September, 1991. This information slip does not disclose as to how the said Abbas Ali Mondal & Ors. were occupying the same or had come to occupy the same. On the basis of this information slip it dies not appear that the petitioners are owners of the property. The record of rights in respect of the property has not been produced. In absence of any other information disclosed either in the writ petition or any where else, it is not possible for this Court to prima facie satisfy itself that the petitioners have any legal right in respect of the said property, particularly when the same is disputed by reason of the facts disclosed in the affidavit in opposition by the competent authority where it has been pointed out that the said plot comprises premises No. 39A, Prince Golam Md. Shah Road, since been included in the return under the Urban Land Ceiling and Regulation Act submitted by the Bangurs. In the absence of any material to show that plot No. 356 is not comprised in premises No. 39A and that it does not belong to Bangurs it is very difficult for this court to arrive at any conclusion, even prima facie, particularly in the absence of the Bangurs as parties in these proceedings. Any decision that might be taken in this case adverse to the Bangurs would affect persons who are not before this Court and had no opportunity to explain their position. Any decision that might be taken in this case adverse to the Bangurs would affect persons who are not before this Court and had no opportunity to explain their position. Therefore, the court can not enter into, even assuming that there are materials to determine the right the question of title and interest of the petitioners in respect of plot No.356, as claimed by them. 9. Mr. Bihani had contended that it was plot No. 355 which was included in the deed of settlement under which the Bangurs had been claiming title. Plot No. 356 was never included in the said deed. But the fact remains that the said deed which is annexure 'Y' to the affidavit-in-reply to the affidavit-in-opposition of the Competent Authority, was a deed of exchange between Union Company Ltd. and Joy Engineering Works Ltd. executed on 19th October, 1955. In the said deed plot No. 355 of Mauza Arakpur was included. It was also mentioned in the said deed that plot No. 356 was the northern plot of plot 355. And the said northern plot 356 belonged to Abbas Ostagar with Raiyat Stithitipan interest. It does not mention Abbas Ali Mondal. However, it is not known how this deed will help to support Mr. Bihani's contention. In the said affidavit-in-reply the petitioners had contended that the plots involved in the said deed of exchange were transferred by Union Company Ltd. to Bangur Land Development Corporation Ltd. But the said deed has not been disclosed. It is very difficult to assert that the Bangurs did not acquire plot No. 356 through any other mode or that the Bangurs had derived title from Union Company Ltd. In the absence of any particulars it is not possible for this court to arrive at a conclusion that the Bangurs had no title. If the petitioners were able to show their prima facie title, then the question might have been different. But the petitioners have been trying to fishing out evidence through writ proceeding that too in the absence of the Bangurs. If the Bangurs were made parties the question might have acquired a different complexion. But the fact remains that the petitioners have never attempted to implead the Bangurs. No decision adverse to the Bangurs could be taken in this proceedings in which they are not parties. If the Bangurs were made parties the question might have acquired a different complexion. But the fact remains that the petitioners have never attempted to implead the Bangurs. No decision adverse to the Bangurs could be taken in this proceedings in which they are not parties. From the very beginning the petitioners knew that the Bangurs had claimed title to the said property. Yet Bangurs were not made parties to the proceedings. 10. Thus the question that is required to be determined in this case, in order to grant relief to the petitioners, is determination of disputed question of title. Such question of title as it appears from the discussion above, can be decided through evidence and that too only in the presence of the Bangurs. Sitting in writ jurisdiction this court is not supposed to determine disputed question of facts and title. The materials that have been produced by the petitioners are not sufficient, in the facts and circumstances of this case, to enable the petitioners to invoke writ jurisdiction. Neither on such material this court can exercise such jurisdiction. 11. Such a question for establishing title can be decided by the appropriate forum competent to do the same. Inasmuch as the petitioners have sought for the following reliefs : "This Hon'ble court be graciously pleased to set aside and quash (i) vesting of plot of land being C.S. Dag No. 356, C.S. Khatian No. 236, RS. No. 46, J.L. No. 39, Mouza Arakpur, measuring about 28 decimals (more or less 18 kathas) under Police Station Jadavpur, District 24- Parganas (South) under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and (ii) L.A. Case No. 30/76/II/48 by issuing appropriate writ or writs, order or orders, direction or directions as to this Hon'ble court may deem fit and proper." 12. The above prayer can be granted only if the right, title and interest of the petitioners, to the exclusion of Bangurs could be established. Such right, title can be established by a Civil Suit. But if it relates to any question with regard to acquisition of title either under the West Bengal Estate Acquisition Act or under The West Bengal Land Reforms Act, the same would be wholly outside the jurisdiction of this court in view of sections 7 & 8 read with section 2 (r) of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997. From the materials that have come before this court it is not possible to ascertain the situation as to how and in what manner the right, title and interest of the petitioners could be established. 13. In these proceedings, from the materials as have been disclosed, it does not appear that this court can undertake the exercise of determining the right, title and interest of the petitioners in respect of plot No. 356 and thereby grant relief. In case the petitioners have any right, title and interest in the property it is open to the petitioner to establish the same though appropriate proceedings before the appropriate forum, namely, the Civil Courts. Merely, by filing of a writ petition without disclosing any materials to show prima facie that the petitioners have title and that the Bangurs do not have, the records can not be called for, only for the purpose of enabling a person to fish out evidence and to persue a speculative proceeding, without being supported by adequate materials to establish that he has a right to maintain these proceedings. 14. In the result, the writ petition fails and is accordingly dismissed. The interim order of status quo stands discharged. 15. The added respondents have filed an application for vacating the interim order. The C.M.D.A. had also filed an application for vacating the interim order. Both the counsel insisted that an order should be recorded that these applications are allowed. I am afraid that such order is required to be recorded when the main writ petition is dismissed. The interim order is interim viz. during pendency of the writ petition. Even without any order, the interim order merges with the final order and can not survive after the writ petition is dismissed. Therefore, no order need be passed on the said applications which are disposed of accordingly. Re: (1) CPAN 1679 of 1998 and (2) CPAN 670 of 1999. 16. Two contempt application have since been filed. So far as the first one is concerned, certain orders have been passed on the said application on 10th September, 1998 including an interim order restraining the alleged contemners from parting with possession of the disputed plot and/or encumbering and/or transferring the same in any way. There were certain directions in the said order copies whereof served on the learned counsel. There were certain directions in the said order copies whereof served on the learned counsel. Be that as it may, the alleged contemners had filed their affidavit in opposition to the said contempt application which is on record. 17. Mr. Pradip Ghosh, the learned Advocate for the alleged contemner submits that so far as the other contempt application is concerned, no copy was ever served upon him or the alleged contemners, though in the order sheet it appears that certain orders were passed. Be that as it may, Mr. Bihani has made a statement in Court that his client does not want to proceed with the second contempt application. He is insisting that in view of the statements made in the supplementary affidavit of the State respondents and that of the C.M.D.A. he does not want to press the second contempt application and he will confine his submission with regard to the first contempt application. Since in respect of the self-same process or interim order, contempts have been alleged, therefore, it is not necessary to go into the second contempt application, which, as prayed for by Mr.Bihani, stands dismissed, in view of the fact that I do not find any reason to pass any order otherwise. 18. So far as the first contempt application is concerned, the affidavit in opposition has since been filed. Mr. Bihani insists that the same may be heard and the interim order passed in connection with the contempt application shall continue till the alleged contemners purge the contempt. Mr. Ghosh, on the other hand, contends that as soon as the principal interim order can not continue, even if it is connected with the contempt application. This question requires examination and needs to be gone into. Mr. Ghosh, on the other hand, contends that as soon as the principal interim order can not continue, even if it is connected with the contempt application. This question requires examination and needs to be gone into. Be that as it may, it appears that the petitioners have not been able to prima facie establish that they have any title to the property to maintain any interim order; and that the construction is already complete; and that certain third party interest have already been created; and at the same time the petitioners, despite having obtained an order of status quo, did not come up within appropriate time when the advertisement was issued in 1995; and that even till 1998 when the construction has already been alleged to be completed and had not objected to; and having regard to the fact that the construction is complete; and the interim order has since been granted in this contempt application on the basis of an order of status quo passed in the writ petition admittedly when the construction was not there. Thus the petitioner having allowed the construction to be continued despite the order of status quo and having not invoked the jurisdiction of this court through any competent proceeding till 1998, when the construction was almost completed, I do not find any reason to continue the interim order any further in view of the fact that in case the petitioners succeed in establishing their right in respect of plot No. 356 they can be adequately be compensated in this changed circumstance by payment of compensation which they can claim if they win the proceedings, if initiated before the Civil Court quantifying the damages in the suit itself. Therefore, the interim order passed in this contempt application is also vacated having regard to the balance of convenience and inconvenience and the situation as is emerging from the facts disclosed hereinbefore. 19. Let this contempt application be listed for hearing on 12th January, 2001. Mr. Bihani may file affidavit in reply to the contempt application within 9th January, 2001. 20. Mr. Bihani has prayed for stay of operation of the order vacating the interim order passed in the contempt application. Having regard to the facts and circumstances and the reasons given above the said prayer is refused. Writ petition dismissed.