Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 938 (CAL)

Rajendra Nath Mukherjee v. Burdwan Municipality

2016-11-28

BISWANATH SOMADDER, SANKAR ACHARYYA

body2016
JUDGMENT : Biswanath Somadder, J. Re: CAN 10534 of 2016. 1. Let the affidavit-of-service filed in Court today be taken on record. 2. The instant application for recall is in respect of an order dated 11th February, 2014, passed by an earlier Division Bench of this Court presided over by the Hon’ble, the then Chief Justice. The recalling application appears to have been filed on 5th October, 2016, i.e., after almost two years eight months from the date of dismissal of the appeal along with all connected applications. The order dated 11th February, 2014, in its entirety, is reproduced hereinbelow. “None appears. Learned Single Judge turned down the prayer of the appellant seeking consideration of his representations in the matter of deletion of his name from the mutation records relating to the property in question. It appears that the said property was sold by the father of the appellant in 1971 to the private respondents. Thereafter, the name of the appellant was deleted in 1981. He filed a title suit being Title Suit No.187 of 1981 against the private respondents for declaration and permanent injunction. Prayer for interim relief was dismissed as not pressed. After a more than two decades, the petitioner approached this Court praying for a direction upon the Municipal authorities to give him an opportunity of hearing with regard to the deletion of his name from the mutation records. Learned Single Judge was of the view that in light of the aforesaid facts such relief could not be granted belatedly. We find that the appellant had approached the Civil Court earlier. He did not get an order of injunction and subsequently sought to reopen the issue relating to mutation before this Court. It is trite law that entries in municipal records do not prove title to immovable property. The appellant is at liberty to establish his title to the property in the civil suit if the same is still pending. Needless to mention that in the event, any declaration of title is made by the Civil Court with regard to the property in favour of the appellant, the latter would be at liberty to take necessary steps to correct the mutation records in accordance with law. With the aforesaid observations, the appeal and all connected applications are dismissed." 3. Needless to mention that in the event, any declaration of title is made by the Civil Court with regard to the property in favour of the appellant, the latter would be at liberty to take necessary steps to correct the mutation records in accordance with law. With the aforesaid observations, the appeal and all connected applications are dismissed." 3. Even a bare perusal of the order reveals that adequate reasons have been provided by the earlier Division Bench of this Court for not entertaining in the appeal preferred by the applicant herein against an order passed by a learned Single Judge who refused to pass such orders as prayed for in the writ petition. 4. In the application for recall of the order dated 11th February, 2014, it has been contended in paragraph 4 that the erstwhile learned advocate appearing on behalf of the appellant who was entrusted with the appeal had failed to appear and the appeal was dismissed in the absence of the learned advocate representing the appellant. In paragraph 11 of the instant application, it has been stated that the order dated 11th February, 2014, is an order amounting to dismissal of the appeal for default. We are of the view, however, that this was not a case where the appeal was dismissed for default simpliciter. Rather, as observed earlier, adequate reasons have been provided in the order dated 11th February, 2014, justifying as to why the Division Bench was not inclined to entertain the appeal against the order passed by the learned Single Judge and proceeded to dismiss the appeal along with all connected applications. 5. A judgment of the Supreme Court has been referred to and relied upon by the learned advocate for the applicant. The said judgment, rendered in the case of Shiv Kumar vs. Darshan Kumar, reported in (2009) 2 SCC 116, has no manner of application at all in the facts of the instant case. The proceedings referred to in the said judgment were essentially civil proceedings, whereas in the instant case, the Division Bench passed the order on 11th February, 2014, in an Intra-Court Mandamus Appeal emanating from an order passed by the writ Court which refused to exercise its extraordinary high prerogative jurisdiction under Article 226 of the Constitution of India and pass such mandatory orders as prayed for. The Courts – whenever exercising its extraordinary high prerogative jurisdiction under Article 226 of the Constitution of India – are not shackled by the procedural rigours of the Code of Civil Procedure and only the principles analogous thereto applies, that too, in a limited manner. For the sake of rendering effective justice, a Constitutional Court can, while exercising its extraordinary high prerogative jurisdiction, proceed to dismiss or dispose of a writ petition or an appeal preferred therefrom on its merit, even in the absence of a party coming forward to prosecute the matter, provided of course, the order of dismissal or disposal – as the case may be – is supported with cogent and justifiable reasons. In such cases, the constraints and compulsions faced by an ordinary civil Court shackled by the procedural laws while exercising its substantive jurisdiction do not bind a Constitutional Court exercising its extraordinary high prerogative jurisdiction, which is essentially discretionary in nature. In the instant case, the order has been passed by an earlier Division Bench of this Court giving justifiable and cogent reasons as to why the order passed by the learned Single Judge was not required to be interfered with. Justice was effectively done by the Division Bench while dismissing the appeal on 11th February, 2014, with the following observations : - “Needless to mention that in the event, any declaration of title is made by the Civil Court with regard to the property in favour of the appellant, the latter would be at liberty to take necessary steps to correct the mutation records in accordance with law.” 6. In such circumstances as stated above, the order dated 11th February, 2014, cannot be recalled after two years by treating the said order as an order of dismissal of the appeal for default. 7. The application, being CAN 10534 of 2016, is, therefore, liable to be dismissed and is accordingly dismissed.