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2007 DIGILAW 741 (CAL)

Nilima Majumder v. STATE OF WEST BENGAL

2007-09-21

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2007
Judgment :- (1.) THIS mandamus-appeal is at the instance of unsuccessful writ petitioners and is directed against the order dated 4th july, 1985 passed by a learned Single Judge of this Court by which His lordship dismissed the writ application filed by the appellants in the absence of their learned Advocate by holding that the writ petitioners had alternative remedy by answering the show-cause notice before the appropriate forum. (2.) IN the writ application, the writ petitioners challenged the notices dated 3rd March, 1985 and 5th March, 1985 issued in the names of the two writ petitioners under Section 4 (1) of the Public Premises (Eviction of unauthorised Occupants) Act,1971 served by the Estate Officer, the respondent No. 5. (3.) INSTEAD of answering those two notices as provided in the said Act, the writ-petitioners straightway preferred the application under Article 226 of the Constitution of India by relying upon the judgment and decree dated 27th november, 1984 passed by the 1 st Court of Munsif, Ranaghat in Title Suit no. 225 of 1983 by which the right, title and interest of the writ petitioner no. 1 in respect of the disputed property was declared and the State-respondents were restrained from disturbing the peaceful possession of the plaintiff in the property. (4.) BY relying upon the aforesaid decision, it was the contention of the writ petitioners that the respondent No. 5 could not describe them as unauthorised occupants of the property over which the title of the writ petitioner no. 1 has been declared by a Civil Court. The petitioner No. 2 is the husband of the petitioner No. 1. (5.) THE writ application was contested by the respondent No. 5 thereby denying the material allegations made in the writ application and inter alia contending that such writ application was not maintainable and at the same time, the decree passed by the Civil Court was not binding upon the Union of india, as it was not party to the said civil proceedings. (6.) ALTHOUGH nobody appeared on behalf of the writ petitioners at the time of hearing, the learned Single Judge, after going through the materials on-record including the affidavit-in-opposition used by the respondent No. 5, held that the writ application was not maintainable, inasmuch as, the petitioner was at liberty to file objection against such notices and the competent authority under the Act was authorised to decide the objection that might be raised by the writ petitioners. (7.) BEING dissatisfied, the writ petitioners have come up with the present mandamus appeal. (8.) AFTER hearing the learned Counsel for the parties and after going through the materials-on-record, we find that the Civil Court declared the title of the writ petitioner No. 1 in respect of the property in question in Title Suit no. 225 of 1983 in the year 1984. The said suit was for declaration of title and permanent injunction under Section 34 of the Specific Relief Act and the state of West Bengal and other Officers of the State of West Bengal were parties to the proceeding. (9.) IT further appears from the record that the property was acquired by virtue of an acquisition proceeding of 1950 under the West Bengal Land development and Planning Act, 1948 at the instance of the State of West bengal and thereafter, the Governor of West Bengal transferred the property in favour of the President of India in the year 1960. Therefore, at the time of institution of suit in the year 1983, the State of West Bengal had no subsisting interest in the property having already conveyed its right, title and interest. In favour of the President of India. Therefore, the decree passed against the state of West Bengal was not binding upon the Union of India, as Union of india was not party to the proceeding. It is now settled law that any declaration granted under Section 34 of the Specific Relief Act is a judgment in personem and is binding only against the parties to the proceedings. (10.) THE impugned notice under Section 4 (1) of the Act of 1971 has been issued at the instance of the Union of India. It is now settled law that any declaration granted under Section 34 of the Specific Relief Act is a judgment in personem and is binding only against the parties to the proceedings. (10.) THE impugned notice under Section 4 (1) of the Act of 1971 has been issued at the instance of the Union of India. We, therefore, find that simply on the basis of the decree passed by the said Civil Court, the writ petitioners cannot resist the notice issued by the Estate Officer and, therefore, the learned Single Judge did not commit any illegality in dismissing the writ application as the writ petitioners challenged the notice in terms of Section 4 (1) of the Act solely on the basis of the decree obtained against the State of West Bengal. (11.) WE agree with the learned Single Judge that the writ application was a premature one as the writ-petitioners had adequate remedy under the provision of the said statute itself and they were free to raise all the objections available to them under law by answering the notice. (12.) WE therefore, find no reason to interfere with the order passed by the learned Single Judge. We make it clear that we have otherwise not gone into the question whether the writ petitioners had valid right to resist the notice of eviction issued J5y the respondent No. 5; but this much we hold that the judgment and decree relied upon by the writ petitioners are not binding upon the Union of India. We further make it clear that dismissal of the writ application will not stand in the way of the writ-petitioners in seeking their remedy before the appropriate forum in accordance with law. This mandamus-appeal is, thus, dismissed In the facts and circumstances, there will be, however, no order as to costs.