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2013 DIGILAW 298 (CAL)

Tushar Mondal v. STATE OF WEST BENGAL

2013-05-16

JAYANTA KUMAR BISWAS

body2013
Judgment : The Court: The petitioner in this W P under art.226 of the Constitution of India dated February 11, 2013 is seeking the following principal relief:- “a) A writ of Mandamus and/or in the nature of Mandamus commanding the respondents concerned and each one of them more particularly the Maheshtala Municipality to act in accordance with law more particularly Section 204 and Section 204A of the West Bengal Municipal Act, 1993 as amended from time to time and to take appropriate steps against the private respondents for demolition of the said building which has been constructed without any authority of law and/or sanction plan on the suit lands which is the subject matter of dispute, pending before the Ld. 6th Civil Judge (Jr. Division) at Alipore in T.S. No.1510 of 2010, by filling up pukur which is not permissible under the law, pending disposal of the instant writ application;” On April 17, 2013 when the W P was taken up for admission hearing advocate for the municipality submitted that the petitioner having moved a previous W P on the same cause of action could not bring the WP. After hearing advocates, I passed the following order on April 17, 2013:- “Advocate for the Municipality has submitted that this WP is not maintainable, because the petitioner’s previous WP on the same cause of action was not entertained by this Court. He has produced an order dated November 14, 2011 passed in a W P No.2200 (W) of 2011 (Tushar Mondal @ Tushar Kanti Mondal v. Maheshtala Municipality & Ors.). Advocate for the petitioner has submitted that the petitioner present in Court has given him instructions to say that the petitioner did not move any previous W P or the W P No.2200 (W) of 2011 on the case of action on which this WP has been filed. He has said the petitioner did not file the W P No.2200 (W) of 2011. In view of the above-noted situation, I pass the following order. The Registrar General is directed to produce the records of the WP No.2200 (W) of 2011 disposed of by the order dated November 14, 2011 and also to give a notice to the advocate on record for the petitioner in that WP No.2200 (W) of 2011 asking him to appear in person next day with the petitioner therein. To daily list as motion next Tuesday. To daily list as motion next Tuesday. Certified xerox.” The WP was taken up for further hearing on April 24, 2013 when the following order was passed:- “Mr. Bhakat appearing in person has submitted as follows. The previous W P was filed by the petitioner in this W P and the petitioner of this W P present in Court was the person who gave him instructions to file the previous WP and affirmed the affidavit in support of that WP before the Oath Commissioner of this Court. To enable the petitioner in this WP to examine the whole situation and to file an affidavit telling the truth, I adjourn hearing until next Monday as wanted by Mr. Ray. To daily list as motion next Monday. Certified xerox.” Thereafter the WP was taken up for hearing again on April 29, 2013 when the following order was passed:- “In view of the affidavit filed by the petitioner and the case stated in paras.6 and 7 of the WP I pass the following order. Mr Bhakat is directed to file an affidavit telling the truth. He is directed to give notice to Mr. P.P. Bhowmick who is also directed to file an affidavit telling the truth. Mr Bhowmick shall remain personally present next day. To next monthly list as motion. Certified xerox.” The W P was taken up for further hearing on May 7, 2013 when the following order was passed:-“The petitioner is directed to file an affidavit explaining under what circumstances he has produced the document at p.123 of the W P. Mr. Ray is directed to give copies of the petitioner’s WP and affidavit to advocates for Mr. Bhakat and Mr. Bhowmick. Mr. Bhakat and Mr. Bhowmick are directed to file their respective counters to the affidavit filed by the petitioner. To daily list as motion next Friday. Certified xerox.” Thereafter the WP was taken up for hearing on May 10, 2013, May 14, 2013 and May 15, 2013. Faced with the question of maintainability of the W P, Mr. Ray appearing for the petitioner prayed for leave to withdraw the W P unconditionally on April 17, 2013. But considering the nature of the allegations made by advocates for the contesting respondents, I did not grant the leave and rather asked all concerned to tell me the truth. Faced with the question of maintainability of the W P, Mr. Ray appearing for the petitioner prayed for leave to withdraw the W P unconditionally on April 17, 2013. But considering the nature of the allegations made by advocates for the contesting respondents, I did not grant the leave and rather asked all concerned to tell me the truth. In the process the petitioner has filed two affidavits dated April 26, 2013 and May 13, 2013, Mr Bhakat has filed an affidavit dated May 8, 2013 and Mr. Bhowmick has filed an affidavit dated May 8, 2013. While in his two affidavits the petitioner has stuck to his case that the previous W P was filed using his name, behind his back, using blank papers containing his signatures by Mr. Bhowmick, his advocate in the subordinate courts, on his own intiative; Mr. Bhakat and Mr. Bhowmick have stated in their respective affidavits that the previous WP was filed by the petitioner himself who met Mr. Bhakat, appeared before the oath commissioner and affirmed the WP himself. This situation leads to the conclusion that the truth has been withheld. The question is who is telling the lie. I do not think it will be appropriate to keep the WP pending for examining the question; for, first, Mr. Ray seeking leave to withdraw the W P unconditionally on April 17, 2013 has again categorically renewed the request yesterday when hearing was concluded at 4.30 p.m.; and, secondly, so long as the order passed in the previous WP subsists this WP, admittedly, cannot be maintained and it is not disputed that the order is in force. Therefore, the only question is whether it is necessary to pass an order for making a complaint under s.340 of the Code of Criminal Procedure, 1973 alleging commission of offences by the person or persons concerned under ss.193, 205 and 209 of the Indian Penal Code. The petitioner’s case is that he did not affirm the affidavit that was filed in support of the previous WP taken out in his name. Admittedly, the oath commissioner could not administer the oath of affirmation unless the deponent of the affidavit personally appeared before him with identity card. The petitioner has stated that Mr. Bhowmick had a xerox of his voter card. Admittedly, the oath commissioner could not administer the oath of affirmation unless the deponent of the affidavit personally appeared before him with identity card. The petitioner has stated that Mr. Bhowmick had a xerox of his voter card. Xerox of the card, even if produced by a person falsely personating the petitioner, would not have been useful because the photo could not match with the appearance of person appearing before the oath commissioner. This situation leads to the conclusion that either a person falsely personating the petitioner appeared before the oath commissioner and affirmed the affidavit, or the petitioner himself appeared before the oath commissioner and affirmed the affidavit. The deponent was required to sign before the oath commissioner. The petitioner has not disputed the correctness of his signatures on the petition, the affidavit and the vakalatnama of the previous W P. Hence it was impossible for anyone to personate the petitioner falsely and affirm the affidavit, and if this was done then the conclusion will be that the oath commissioner himself was a party to the fraudulent process. This is the implication of the petitioner’s case that the previous WP was filed by Mr. Bhowmick who according to the petitioner had obtained the petitioner’s several signatures on several blank sheets. This, in my opinion, is the real warrant for making a complaint under s.340. There is one more very significant aspect of the present W P. The document at p.123 of the WP is a representation of the petitioner. The petitioner has not disputed the genuineness of the document. In the document reference was made to a case filed by the petitioner in this court in 2011. It is the petitioner’s case that he did not file any case in this court in 2011. His case rather is that the present W P has provided him the first ever opportunityto visit this court. In his affidavit he has stated that the representation was prepared by Mr. Bhowmick on his own initiative, and that he had no idea of the contents of the representation. This is a very very doubtful explanation. He was in possession of the representation from the date it was sent to the addressee thereof. He consciously produced a copy thereof with the present WP and has affirmed the contents of the relevant paragraphs as true to his knowledge. This is a very very doubtful explanation. He was in possession of the representation from the date it was sent to the addressee thereof. He consciously produced a copy thereof with the present WP and has affirmed the contents of the relevant paragraphs as true to his knowledge. This leads to a, prima facie, opinion that the petitioner is not fully truthful. In my opinion, it is necessary to ascertain the truth and I think it can be done only if a complaint under s.340 of the Code of Criminal Procedure, 1973 is made. It is evident that someone has consciously made a false statement and such false statement made by him knowingly has amounted to giving false evidence by him intentionally; and that he has fraudulently and dishonestly made in this court the claim which he knows to be false. For these reasons, I dismiss the W P and appoint the Registrar Vigilance of this court to make a complaint, in the light of what has been stated hereinbefore, under s.340 CrPC alleging commission of offences by the person or persons concerned under ss.193, 205 and 209 of the Indian Penal Code. The complaint shall be made at once. No costs.