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2014 DIGILAW 770 (CAL)

Avijit Dandapat v. Sunil Roy

2014-08-14

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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Judgment This mandamus appeal is directed against an order passed by a Learned Single Judge of this Court on 6th May, 2014 in W.P. No. 10128(W) of 2014 by which the Engineer of P.W.D. exercising authority over the disputed area and the Chief Executive Officer of Haldia Development Authority were directed to meet within a week of the receipt of His Lordship’s order for taking a concerted action to remove any encroachment from any public land made particularly in front of the writ petitioner’s residence. It was further made clear in the said order that if such an encroachment on State or other public land is discovered, it should be removed before the matter appears six weeks after summer vacation when the Chief Executive Officer, Haldia Development Authority was required to submit a report before the Court. The legality of such an interim order passed by the Learned Trial Judge has been challenged by the appellants who were the added respondents before the writ court. Let us now test the legality of the said order in the facts of the instant case. The said writ petition was filed by the writ petitioner/respondent no.1 herein, complaining that the private respondents have encroached on Government land between the writ petitioner’s land and the road in such a manner that the writ petitioner’s ingress to and egress from his residential property have been seriously impeded. It was alleged that the writ petitioner’s appeal to the respondent authorities have not been paid heed to. Under such circumstances, the writ petition was filed by the petitioner/respondent no.1 herein, seeking issuance of a writ in the nature of mandamus commanding the respondent authorities and/or each one of them and their agents, colleagues, to remove the unauthorized encroachment from the public premises which is in front of the petitioner’s premises and more particularly which is used by the petitioner as ingress and egress under Basudevpur Mouza, Police Station Nandakumar by considering the representation as made by the petitioner. Thus we find that the ultimate relief which is claimed by the writ petitioner is for removal of the encroachment from the roadside land which affects the petitioner’s free access to his premises. Thus we find that the ultimate relief which is claimed by the writ petitioner is for removal of the encroachment from the roadside land which affects the petitioner’s free access to his premises. Considering the impugned order passed by the Learned Trial Judge, we find that the ultimate relief which the writ petitioner has claimed in the writ petition has been granted by the Learned Trial Judge at the interim stage. Such relief by way of interim measure cannot be granted by the Learned Trial Court as grant of such interim relief will ultimately amount to the grant of the ultimate relief in the writ petition. We have already indicated above that the writ petition has been kept pending. Adjudication as to the encroachment of the Government’s land by the private respondents is not complete. We do not know as to what right the private respondents may ultimately claim in respect of the land encroached by the private respondents. We also do not know as to whether the disputed land belongs to the Government or not. As such, we feel that without completing the adjudication with regard to the relief claimed by the writ petitioner in the writ petition, the relief which was granted by the Learned Trial Judge by way of interim measure ought not to have been granted. That apart, we find that His Lordship did not even restrict implementation of His Lordship’s said order to the encroachment allegedly made by the private respondents on the Government land affecting the access of the writ petitioner to his premises. The Learned Trial Judge has also directed the concerned authority to hold an enquiry to ascertain as to whether any encroachment has been made on any public land and to remove such encroachment. Such order, in our considered view, cannot be passed in such a writ petition where personal relief was claimed by the writ petitioner. It is not a writ petition in the nature of public interest litigation. The Court should restrict itself to the subject matter of the dispute in a case of present nature, but here we find that the Learned Trial Judge did not do so. Accordingly, we set aside the impugned order. The appeal is thus disposed of. It is not a writ petition in the nature of public interest litigation. The Court should restrict itself to the subject matter of the dispute in a case of present nature, but here we find that the Learned Trial Judge did not do so. Accordingly, we set aside the impugned order. The appeal is thus disposed of. Leave is granted to the respondents to file their affidavit-in-opposition to the writ petition within four weeks from date; reply, if any, be filed by the writ petitioner within two weeks thereafter. Let the writ petition be listed for hearing six weeks hence before the appropriate Bench. Let the affidavit-of-service filed in Court today, be kept with the record. Re: CAN 5675 of 2014 (Stay) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The stay application being CAN 5675 of 2014 is thus deemed to be disposed of.