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2017 DIGILAW 701 (CAL)

Amit Dhandania v. State of West Bengal

2017-08-21

ARINDAM SINHA

body2017
JUDGMENT : 1. The petitioners are before this Court seeking issuance of mandamus commanding the respondents to immediately recall or rescind or cancel any sanction or licence provided for installation and running of lift in the premises under the occupation of the private respondent. This writ petition was moved on 16th August, 2017 when the following order was made:- “Mr. Singh, learned advocate appears on behalf of the petitioners and submits, the private respondent is a tenant who has installed a lift in the demise. He refers to an affidavit sworn by the private respondent before notary on 4th July, 2003 in support of his submission that the said respondent is a tenant. He then refers to communication dated 21st March, 2017 made by the Public Information Officer (PIO) in answer to query raised on behalf of the petitioners regarding whether any licence had been granted in respect of installation and use of the lift. The answer is in the negative as appears therefrom. He then relies on Section 7 of the West Bengal Lifts and Escalators Act, 1955 in making his prayer for interim order. 2. On behalf of the respondent no. 3 it is submitted that no licence for the lift had been granted. Mr. Ganguly, learned advocate appearing on behalf of the private respondent submits, no licence was obtained by his client before installing the lift. He, however submits, the writ petition is not maintainable since a suit had been filed by the petitioners in which they claimed they had an interim order to the same effect, passed in appeal. 3. Mr. Singh seeks adjournment to make his submissions regarding the point of maintainability raised.” 4. Mr. Singh hands up copies of plaint in T.S. 710 of 2016 (Amit Dhandhania & Ors. vs. Abhay Singh Jain), the injunction application and, inter alia, interim order passed in appeal directing:- “The respondent and his men and agents, servants, sub tenants and persons claiming under him are hereby restrained from running and operating the lodge and the lift, housed in the building constructed in the suit premises till 13.09.2016.” 5. He then hands up Order no. He then hands up Order no. 8 dated 20th September, 2016 passed by the trial Court in which, inter alia, the following was said:- “Admittedly, the defendant is in possession and at this juncture while disposing of the interlocutory application the genuinity and validity of the documents through which the defendant is claiming title and executed by the predecessor of the plaintiff cannot be adjudicated without trial and evidences from respective parties, as such, I find that the balance of convenience and inconvenience do not weighs in favour of the plaintiff and admittedly the plaintiff is out of possession which manifestly proves the fact that plaintiff fails to establish his prima facie, case and the temporary injunction as prayed by the plaintiff is liable to be rejected. ORDERED That the temporary injunction petition filed by the plaintiff under order 39 rule 1 and 2 read with section 151 CPC is hereby thus considered and stands rejected on contest, without any orders as to the costs.” 6. According to him, the writ petition is maintainable. His clients had approached the Civil Court with a civil dispute regarding tenancy. Injunction was claimed in that context. In the writ petition his clients have sought for the relief as aforesaid by which the respondents should be directed to act in accordance with law. When admittedly the private respondent has not obtained a licence for installation and operation of the lift, section 7 of the West Bengal Act of 1955 is a bar to the working of such lift. 7. Mr. Ganguly however submits, the petitioners availed of efficacious remedy in filing the suit. The restraint order regarding use of lift was obtained though since vacated. The petitioners cannot having thus availed of efficacious remedy thereafter seek to re-agitate the same grievance before the writ Court which, in exercise of discretion, should dismiss the writ petition. He submits further, the petitioners have suppressed regarding their suit by only making the allegations as in paragraphs 8 and 41 of the petition. He relies on a judgment dated 26th October, 2010 of a learned single Judge of the High Court of Orissa in the case of Asian School of Business Management, Trust, BBSR vs. Orissa Power Transmission Corporation Ltd. (OPTCL) BBSR & Ors. He relies on a judgment dated 26th October, 2010 of a learned single Judge of the High Court of Orissa in the case of Asian School of Business Management, Trust, BBSR vs. Orissa Power Transmission Corporation Ltd. (OPTCL) BBSR & Ors. reported in 2011(111) CutLT 411, in particular to paragraphs 7 and 8 therein which are set out below:- “[7] It is not in dispute that the Petitioner filed C.S. No. 72/2006 in the Court of the Civil Judge (Jr. Divn.), Bhubaneswar seeking permanent injunction against opposite parties 1 to 3 restraining them from entering upon the land in question and erecting/constructing any transmission tower/line over the same. The present writ petition has been filed virtually for self-same relief. Law is well settled that Writ Court should not interfere in the matter where suit or any other proceeding is pending before the lower forum seeking self-same relief. The apex Court in Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Ltd. and Ors., 1995 1 SCC 642 , held as follows: We are of the view that the point taken by the Appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ Petitioner actually had availed of that remedy. The writ Petitioner’s appeal before the statutory authority was pending. In that view of the matter this writ petition should not have entertained. 8. In Jai Singh v. Union of India and Ors., 1977 AIR (SC) 898, the apex held that the Appellant cannot pursue two parallel remedies in respect of the same matter at the same time. 9. The apex Court in K.S. Rashid and Son V. Income Tax Investigation Commission and Ors., 1954 AIR(SC) 207, held as follows: “For the purpose of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the Appellants before us have already availed themselves of the remedy provided for in Section 8(5) of the Investigation Commission Act and that a reference has been made to the High court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow the Appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere with the orders made by the High Court. 10. The Apex Court in Tilokchand Motichand and Ors. V. H.B. Munshi, Commissioner of Sales Tax, Bombay and Anr., 1970 AIR (SC), 898, held this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226 with a similar complaint and for the same relief and failed. This Court insists on an appeal to it and does not allow fresh proceeding. In this case the principle of res judicata is applied although the expression is some of the inapt and unfortunate. The rule is based on public policy but the motivating factor is the existence of another parallel jurisdiction in another court. [8] In the case at hand, since Civil Suit is pending in the Court of Civil Judge (Jr. Division), Bhubaneswar the present writ petition seeking selfsame relief, is not maintainable.” 11. The petitioners in their above suit have claimed, inter alia, declaration that the petitioners are owners and eviction of the private respondent from the demise in which the private respondent is alleged to have installed and is operating a lift. Mr. Ganguly was unable to demonstrate before this Court that there is a pleading in suit or a line in any order passed by the trial or appeal courts regarding the bar of operation of lift under the provision of section 7 of the Act of 1955. Section 7 of the West Bengal Lifts and Escalators Act, 1955 is as follows:- “7. Section 7 of the West Bengal Lifts and Escalators Act, 1955 is as follows:- “7. Lift not to be worked without license.- No lift shall be worked except under a license granted under this Act and in conformity with the terms and conditions of the license and in accordance with such rules as may be prescribed in this behalf: Provided that nothing in this section shall apply to a lift installed before the commencement of this Act, for a period of six months from such commencement, or if an application for license is made within that period in accordance with the provisions of sub-section (1) of section 8, until such application is finally disposed of under the said section.” 12. Efficacious remedy has been availed by the petitioners regarding enforcement of the statutory bar by moving this Court under Article 226 of the Constitution of India. This Court is satisfied, from the materials on record and record of submissions, that the private respondent has installed and is operating the lift without having obtained a licence therefore. There will be an interim order restraining the operation of such lift. 13. Mr. Bose, learned advocate appearing, inter alia, the respondent no. 5 seeks direction upon the said respondent for rendering assistance. The said respondent will act accordingly. 14. Direction for affidavit is sought only on behalf of the private respondent who wants to file affidavit by a week. Affidavit-in-opposition by 28th August, 2017. Reply by 4th September, 2017 and the writ petition be listed for hearing on 5th September, 2017.