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2007 DIGILAW 863 (CAL)

Bafati Mia v. The State of West Bengal

2007-12-11

SURINDER SINGH, TAPEN SEN

body2007
JUDGMENT:- (1). THE appellant/petitioner filed this writ petition claiming therein that he had been allocated a kerosene oil dealership and he had been running the dealership in a small room with tile shed and dilapidated walls on the ground floor of the premises situate at 54, Syed Amir Ali Avenue, Kolkata-19. In the year 2003, the landlord of the premises having decided to hand over the premises to a promoter hired some anti-social elements of the locality and/ or professional miscreants against the petitioner entrusting them with the responsibility of evicting him from the aforesaid shop. In the last week of january, 2003, he was threatened by some goondas with dire consequences at gun point. They asked him to quit the premises and even the city of Kolkata immediately failing which he would be murdered. We are also told that they even threatened to kill his son along with the petitioner. Out of fear, the appellant/petitioner left Kolkata and went to his native village: Sometime later he returned to Kolkata and asked the landlord to restore him in his small accommodation either in the same premises or elsewhere nearby so that he may resume his kerosene oil dealership. The landlord did not help him. Rather he caused a show-cause notice to be issued from the office of the respondent No. 2 in connection with his kerosene oil dealership. The petitioner, however, failed to give answer to the show-cause notice for a long time out of anxiety and neurosis. Since he had no means of surviving in kolkata, he had been given financial assistance by his well-wishers, (2). AFTER recovering from his illness, on 4th of July, 2005 he submitted a mercy petition before respondent No. 3 narrating the aforesaid facts. In response to this mercy petition, the appellant/petitioner received a letter dated 31st of August, 2005 informing him that the respondent No. 2 would give him a hearing on 20th September, 2005. It is stated that when the appellant/petitioner was forced to leave the premises, he was compelled to place his left thumb impression on some blank sheet of papers as also one or two Non-Judicial stamp papers. It is possible that those were subsequently used by them or by the petitioners landlord. (3). ON 20th September, 2005 the petitioner appeared before the respondent No. 2 and produced all the relevant papers regarding grant of kerosene oil dealership. It is possible that those were subsequently used by them or by the petitioners landlord. (3). ON 20th September, 2005 the petitioner appeared before the respondent No. 2 and produced all the relevant papers regarding grant of kerosene oil dealership. In the meantime, he had rented a shop room within the radius of 1 km. from the original premises on which the licence had been granted. Although the respondent No. 2 gave a patient hearing to him and perused all the relevant papers, no instantaneous order was passed. Since no formal order had been communicated to him, he submitted another representation on 23rd of September, 2005. It was at this stage that the impugned order was communicated to the petitioner. The order, in fact, is dated 23rd of September, 2005. (4). THE petitioner was surprised to know that in the order dated 23rd of september, 2005 it had been stated that in the year 2003 itself he had voluntarily surrendered the licence which had been subsequently cancelled on 11th of March, 2003. To controvert this averment the respondents have filed an affidavit-in-opposition in the writ petition. In the said affidavit-in-opposition, they have clearly taken the plea that the petitioner had voluntarily surrendered the kerosene oil dealership. It was cancelled following due procedure of law. (5). AFTER hearing the Counsel for the parties, learned Single Judge has rejected the writ petition on the sole ground that the writ petition involved disputed question of facts and, therefore, cannot be entertained, Hence this appeal. (6). LEARNED Counsel for the appellant/petitioner submits that the learned single Judge ought not to have dismissed the writ petition only on the ground of disputed question of facts. The matter needs to be viewed sympathetically as the petitioner had been compelled to leave Kolkata and give up the kesrosene oil dealership. In fact, according to the learned Counsel, the petitioner never surrendered the kerosene oil dealership. Learned Counsel for the respondent, however, submits that the petition clearly involves adjudication of the disputed question of facts. Furthermore, in the pleadings itself the petitioner has clearly stated that he Wishes to resume the dealership. This would clearly show that he had at one stage discontinued the dealership. (7). WE have heard the Counsel for the parties at length. Learned Counsel for the respondent, however, submits that the petition clearly involves adjudication of the disputed question of facts. Furthermore, in the pleadings itself the petitioner has clearly stated that he Wishes to resume the dealership. This would clearly show that he had at one stage discontinued the dealership. (7). WE have heard the Counsel for the parties at length. We are of the considered opinion that the learned Single Judge has correctly concluded that the writ petition cannot be entertained as it involves disputed question of facts. The very basis on which the appellant/petitioner claimed the relief is disputed by the respondent. It is true that even in the writ jurisdiction there is no absolute bar for this Court to entertain the writ petition in exercise of jurisdiction under Articles 226/227 of the Constitution of India. But this discretion has to be used with care and caution. It is for the petitioner to establish the basis for his claim. If we peruse the pleadings, it would tend to indicate that the petitioner had voluntarily given up the dealership. It is his case that he had to leave Kolkata as he had been hounded up by some antisocial elements. Another very important fact may be noticed from the impugned order. The impugned order is as follows:-"the petitioner files this writ application for a direction upon the respondent authority to renew his S. K. Oil license bearing No. CG-K.Oil/karaya/3/92/38330. According to the petitioner under compelling circumstances he was not in a position to run his business from his shop for a pretty long time. Now the petitioner is in a position to run his business from a place other than the place where his shop was situated. According to the petitioner the respondent authority is not paying any heed to the prayer of the petitioner to renew his S. K. Oil license for enabling him to run such business from a place nearby wherefrom the business of the petitioner was carried on previously. By filing affidavit-in-opposition the State-respondents disclosed before this Court that the petitioner himself surrendered his aforesaid license to the respondent authority as per communication dated January 29, 2003. Therefore, the above license of the petitioner could not be renewed in accordance with the provisions of the West Bengal kerosene Control Order, 1968. By filing affidavit-in-opposition the State-respondents disclosed before this Court that the petitioner himself surrendered his aforesaid license to the respondent authority as per communication dated January 29, 2003. Therefore, the above license of the petitioner could not be renewed in accordance with the provisions of the West Bengal kerosene Control Order, 1968. By filing an affidavit-in-reply the petitioner disputed the fact of surrendering his license in question as per aforesaid communication dated January 29, 2003. In the aforesaid facts and circumstances I find that this is a disputed question of fact whether the license in question has been surrendered by the petitioner as per his communication dated January 29, 2003 which cannot be decided on the materials available on record and without any external aid. Therefore, in view of the settled principles of law such disputed questions of fact cannot be decided by a Court sitting in writ jurisdiction. This writ application thus stands dismissed. But this order will not prevent the petitioner to move before the appropriate forum of law on the self same cause of action, If so advised. There will, however, be no order as to costs. Let urgent xeroxed certified copy of this order be given to the parties, if applied for upon compliance of requisite formalities. " (8). A perusal thereof would clearly shows that not only the appellant petitioner surrendered the licence on 29th of January, 2003 but the premises on which the licence had been granted was demolished by the owner of the building. This would be an added ground to reject the prayer of the petitioner at this stage. It is even in the pleadings of the petitioner in the writ petition that the premises had been vacated by the petitioner towards the end of january, 2003. Learned Counsel for the appellant/petitioner also submitted that taking into consideration the facts and circumstances of the case a mercy chance should be given to the appellant/petitioner to apply again. We are unable to accept such a request. Even in exercise of jurisdiction under articles 226/227 of the Constitution, the High Court would only pass orders for enforcement of legal rights or in aid of doing substantial justice. We are unable to grant any such relief to the petitioner. The appeal is treated as on days list and both the appear and the application are dismissed accordingly. (9). Even in exercise of jurisdiction under articles 226/227 of the Constitution, the High Court would only pass orders for enforcement of legal rights or in aid of doing substantial justice. We are unable to grant any such relief to the petitioner. The appeal is treated as on days list and both the appear and the application are dismissed accordingly. (9). THE appellant/petitioner is, however, at liberty to approach the respondents by making a fresh application which shall be considered by the respondent in accordance with law.