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2009 DIGILAW 830 (CAL)

Santosh Kumar Singh v. Sanjiv Kumar Singh

2009-11-23

B.Bhattacharya, Prasenjit Mandal

body2009
JUDGMENT 1. INSTEAD of disposal of the application, we propose to hear out the appeal itself by treating it as on day's list as this matter can be disposed of on a pure question of law. 2. THIS appeal is at the instance of private respondents in a writ application alleging inaction on the part of police in not stopping the use of a particular land as brick field without having any quarry permit in violation of West Bengal Mines and Minerals Rules, 2002, and also in violation of the order of status quo passed by a Civil Court. It appears that between the writ petitioner and private respondents several civil litigations are pending and in those civil litigations, there is an order of status quo in respect of the disputed property where allegedly a brick field is being run. 3. IN the past, the writ petitioner came up with another writ application alleging police inaction for not implementing the order of the Civil Court granting status quo. Such writ application was dismissed by a learned Single Judge of this Court not on merit but in view of existence of efficacious alternative remedy. 4. BEING dissatisfied, the writ petitioner preferred a mandamus appeal before another Division Bench of this Court which affirmed the order of the learned Single Judge by pointing out that for enforcing an order of status quo passed on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, a writ application was not maintainable. The Division Bench, however, did not enter into merit. Subsequently, the writ petitioner has filed a fresh writ application out of which the present mandamus appeal arises. 5. IN the present writ application, the appellants have stated all the facts those were pleaded in the earlier writ application pointing out existence of an order of status quo and in addition to those facts have alleged that they lodged complaint before the concerned District Magistrate, who is an appropriate authority under the West Bengal Mines and Minerals Rules, for grant of quarry permit complaining that the private respondents were using the land as brick field without having any valid quarry permit. Ultimately, they prayed for a direction upon the District Magistrate as well as the concerned police authority restraining the private respondents from running the brick field from the disputed property on the aforesaid ground. 6. Ultimately, they prayed for a direction upon the District Magistrate as well as the concerned police authority restraining the private respondents from running the brick field from the disputed property on the aforesaid ground. 6. IT appears from the order impugned that the learned Single Judge called for a report from the concerned Block Land and Land Reforms Officers, Bali, for the purpose of ascertaining whether the private respondents had any valid quarry permit. The concerned officers in the report pointed out that the private respondents had no quarry permit. Immediately thereafter, the learned Single Judge disposed of the writ application by directing the Superintendent of Police, Howrah to ensure that no further excavation of any land was carried out by the private respondents at the concerned brick field or land in question. His Lordship, however, made it clear that it would be open to the private respondents to apply, in accordance with law, for permission of further work to be carried out. His Lordship further gave liberty to the State-respondent to take appropriate steps against the private respondents for non-payment of royalty in accordance with the law. Being dissatisfied, the private respondents have come up with the present appeal. 7. AT the very outset Mr. Chakraboty, the learned Senior Counsel appearing on behalf of the appellant had taken a preliminary objection as to the maintainability of the writ application by pointing out that the writ application was moved before the learned Judge having determination over Group IX matters which are residuary in nature. Mr. Chakraborty points out that there is a specific provision in the Writ Rules of this Court showing that Court having determination to take up matters under Group 1(h) dealing with mines and minerals should have determination to take up this type of matters. Mr. Chakraborty further points out that in view of the fact that in the past a similar writ application was dismissed, His Lordship should not have entertained this writ application over again. His further grievance is that the writ application was disposed of even before passing any direction upon his client to file affidavit-in-opposition or objection to the report submitted by the State authority. 8. MR. Mukherjee, the learned Advocate appearing on behalf of the writ petitioner respondents on the other hand opposes the aforesaid contention of MR. His further grievance is that the writ application was disposed of even before passing any direction upon his client to file affidavit-in-opposition or objection to the report submitted by the State authority. 8. MR. Mukherjee, the learned Advocate appearing on behalf of the writ petitioner respondents on the other hand opposes the aforesaid contention of MR. Chakraborty and points out that in view of admitted position that the appellant before us has no valid quarry permit, the learned Judge rightly passed the order and this Court should not entertain this appeal. MR. Mukherjee submits that his client did not commit any mistake in making the writ application under Group IX of the Writ Rules of this Court. After hearing the learned Counsel for the parties and after going through the materials on record, we find hat the grievance of the writ petitioners was two-fold first- there was an order of status quo in a civil suit and secondly, without having any valid quarry permit, the private respondents were using the land as a brick field. So far the first grievance is concerned, it appears that in the past, the writ petitioner filed another writ application for implementation of the order of status quo but was unsuccessful up to the appellate stage on the ground that the writ application was not maintainable for enforcing the order of status quo. Therefore, the said order of the Division Bench having attained finality, on the self-same ground, the second writ application cannot be held to be maintainable. 9. AS regards the other ground particularly on which the learned Trial Judge has passed the order, impugned, i.e., the absence of a valid quarry permit under the West Bengal Mines and Minerals Rules, 2002, in our opinion, Mr. Chakraborty is justified in contending that in that event, the writ application should be categorized as one under Group 1(h) and in that case, the learned Trial Judge lacked inherent jurisdiction to entertain the writ application. It appears from the record that direction was given upon the police only because of the finding recorded by the learned Trial Judge that the appellant was continuing with the brick field without having any valid quarry permit under the relevant Rules. Therefore, the jurisdiction was exercised for violation of the West Bengal Mines and Minerals Rules, 2002. It appears from the record that direction was given upon the police only because of the finding recorded by the learned Trial Judge that the appellant was continuing with the brick field without having any valid quarry permit under the relevant Rules. Therefore, the jurisdiction was exercised for violation of the West Bengal Mines and Minerals Rules, 2002. It is now settled law that there is a particular provision in the Writ Rules of this Court enabling a particular learned Judge with the determination to take up a particular kind of matter, by invoking residuary jurisdiction, the same cannot be entertained by the learned Judge having jurisdiction to entertain residuary matter. The residuary matters are those matters for which, there is no provisions in the Writ Rules and over which no determination has been given to any other learned Judge. 10. WE, thus, find that the learned Single Judge should not have entertained the writ application, if His Lordship intended to exercise jurisdiction for non- compliance of the provisions of West Bengal Mines and Minerals Rules, 2002. Moreover, we also find substance in the contention of Mr. Chakraborty that simply by relying upon a report given by a particular officer of the State Government a Court without giving opportunity to the person affected by such report should not dispose of the writ application. On that ground also, the order impugned cannot be supported. We, thus, find that in the present case, the order impugned was passed by the learned Judge having no determination to take up the matter and on that ground alone, we set aside the order without entering into the merit of the writ application as to whether the appellant had a valid quarry permit or not. 11. WE, thus, set aside the order impugned on the above ground and remand the matter to the learned Judge having determination to take up matters under Group 1(h) of the Writ Rules. 12. THE appellant is directed to file affidavit-in-opposition to the main writ application as well as to the report submitted by the concerned officer of the State Government within fortnight from today. The writ petitioner- respondent will be free to pray for interim order before the learned Judge having determination over the subject-matter. 13. AT this stage, Mr. 12. THE appellant is directed to file affidavit-in-opposition to the main writ application as well as to the report submitted by the concerned officer of the State Government within fortnight from today. The writ petitioner- respondent will be free to pray for interim order before the learned Judge having determination over the subject-matter. 13. AT this stage, Mr. Mukherjee, the learned Advocate appearing on behalf of the respondent/writ petitioner vehemently contended that we should pass appropriate interim order in favour of his client. Since we propose to set aside the order as an Appellate Court on the ground of want of jurisdiction of the learned Trial Judge, our order is in the nature of an order of Appellate Court returning the plaint for presentation before the appropriate forum after setting aside the order of the Court having no jurisdiction. 14. WE further find that for want of interim order, at this stage the respondents will not suffer any loss in view of the fact that there is already an order of status quo before the learned Civil Judge. Therefore, he will not suffer any loss if any further interim order is not passed at this stage. We further make it clear that the learned Trial Judge before passing any interim order will also give opportunity to the appellant to urge the point sought to be raised before us that the writ application itself is not maintainable as we have not gone into that point in this appeal. 15. AFTER this order is passed Mr. Mukherjee, the learned Advocate appearing on behalf of the respondent-writ petitioners pray for stay of operation of our order. 16. IN view of what have been stated above, we find no reason to stay our order. The prayer for stay is refused. Urgent xerox certified copy of this Order, if applied for, be given to the parties.