Sarenga Sashan Kalibari Rathtala Committee v. Abdul Jobbar Dewan
2017-12-07
JYOTIRMAY BHATTACHARYA, SAHIDULLAH MUNSHI
body2017
DigiLaw.ai
JUDGMENT : Jyotirmay Bhattacharya, J: 1. This mandamus appeal is directed against an order passed by a learned single judge of this court on 29th November 2017 in a writ petition being W.P. No. 27841 (W) of 2017 filed by the writ petitioner/respondent no. 1. Taking the queue from the observations made by the learned single judge of this court in an order dated 25th January 2017 passed in a writ petition being W.P.No. 1351 (W) of 2017 (Sarenga Sashan Kalibari Rathtala Committee & Ors. Vs. State of West Bengal & Ors.), the writ petitioner/respondent herein applied before the concerned Block Land & Land Reforms Officer for demarcation of the land in question so that similar disturbance as to the user and enjoyment of the said land does not crop up in future. Since the concerned Block Land & Land Reforms Officer has not taken any step to demarcate the land in question in pursuance of the application submitted by the writ petitioner/respondent, the writ petitioner/respondent filed the aforesaid writ petition seeking issuance of direction upon the concerned Block Land & Land Reforms Officer to demarcate the land in question. Other incidental reliefs are also claimed in the said suit. The learned single judge by the impugned order passed on 29th November 2017 directed the respondent no. 4, namely, the concerned Block Land & Land Reforms Officer to demarcate the plots of land in question and to submit a report to the writ court on the next date of hearing. The police authority was also directed to render adequate and proper assistance to the respondent no. 4, namely, the concerned Block Land & Land Reforms Officer in the work of demarcation of the land in question. The writ petition is made returnable on 12th December 2017 for further consideration. 2. The legality and/or correctness of the said order is challenged by the private respondents/appellants herein in this mandamus appeal. 3. Mr. Banerjee, learned advocate appearing for the appellants submits that there were rival claims of title over 60 decimals of land lying in R.S. Plot No. 5515 at Mouza-Sarenga, District- Howrah between two groups of persons belonging to different communities.
The legality and/or correctness of the said order is challenged by the private respondents/appellants herein in this mandamus appeal. 3. Mr. Banerjee, learned advocate appearing for the appellants submits that there were rival claims of title over 60 decimals of land lying in R.S. Plot No. 5515 at Mouza-Sarenga, District- Howrah between two groups of persons belonging to different communities. He submits that his client filed a Civil Suit being Title Suit No. 198 of 1983 in the court of the learned Civil Judge (Junior Division), 5th Court at Howrah in the representative capacity after taking leave of the court under Order 1 Rule 8 of the Code of Civil Procedure. The said suit was ultimately decreed ex parte on 15th September 1984 declaring that the members of the Hindu community of Village-Sarenga have exclusive right of user of the suit land measuring about .60 acres of land comprising in Dag No. 5515 appertaining to R.S. Khanda Khatian Nos. 2597, 2599, 2601, 2603 and 2605 for religious purposes and for observance of religious ceremonies and festivals and the defendants have no right to come upon the suit land for disturbing and/or interfering with the exclusive right of the Hindu public of the village – Sarenga. It was further declared therein that the appellants herein are entitled to get a decree for permanent injunction restraining the defendants therein from coming upon the suit land and disturbing and/or interfering in any manner with the exclusive right of the Hindus of village-Sarenga to use the suit land for Hindu religious purposes and observing any of their religious ceremonies and the Mohamedans are hereby restrained from holding their religious rite and ceremonies in the suit land and also from disturbing or interfering the Hindus from observing their any sort of religious performance in the suit land by any manner whatsoever. The said decree attained its finality as none has challenged the said decree in appeal. 4. He further pointed out that subsequently a suit was filed by one Altab @ Altab Hossain Molla against Guiram Buxi & Ors. for a declaration that the decree which was passed in Title Suit No. 198 of 1983 was not binding upon them. The said suit stood abated on the death of one of the parties in the said suit.
He further pointed out that subsequently a suit was filed by one Altab @ Altab Hossain Molla against Guiram Buxi & Ors. for a declaration that the decree which was passed in Title Suit No. 198 of 1983 was not binding upon them. The said suit stood abated on the death of one of the parties in the said suit. Application for setting aside abatement under Order 22 Rule 9 of the Code of Civil Procedure filed by the plaintiffs therein is still awaiting consideration before the learned trial court. 5. Mr. Banerjee further pointed out that apart from the said suit, the writ petitioner/respondent filed a suit being Title Suit no.182 of 2016 against the appellant herein for declaration that the writ petitioner/respondents are the rightful owners and possession holders and/or entitled to remain in possession in respect of the land measuring about 60 decimals of danga land lying and situated at Mouza-Sarenga in R.S Dag no. 5515 corresponding to L.R Dag no.5534 at Mouza Sarenga within the District of Howrah. According to the plaintiff therein the R.S Dag no.5515 corresponding to L.R Dag no. 5534 comprises of 1.24 decimals of land, the plaintiffs claimed that the defendants therein were trying to disturb the possession of the plaintiffs in the balance .60 acres of land belonging to the plaintiffs which is being used for holding annual URS and other ceremonies connected with Sarenga Hazrat Sultan Saha Rahamat Alyahe Mazar Sharif at a Mouza Pir Baba from time immemorial. Thus, the plaintiffs in the said suit not only prayed for declaration of their right, title and interest over the suit property i.e. remaining .60 acres of land which is different from the land over which the appellants’ right to perform the Hindu religious purpose was declared but they also claimed a decree for permanent injunction for restraining the defendants therein from disturbing the peaceful possession of the plaintiffs therein in the suit property. After filing the said suit, an application was filed by the plaintiffs therein seeking temporary injunction for restraining the defendants therein from disturbing the plaintiffs’ possession over the property involved in the said suit till the disposal of the suit. Ad interim order of injunction in similar term was also sought for by the plaintiffs in the said suit.
After filing the said suit, an application was filed by the plaintiffs therein seeking temporary injunction for restraining the defendants therein from disturbing the plaintiffs’ possession over the property involved in the said suit till the disposal of the suit. Ad interim order of injunction in similar term was also sought for by the plaintiffs in the said suit. The plaintiffs’ prayer for ad interim order of injunction was rejected by the learned Trial Judge and the plaintiffs also became unsuccessful in the appeal, which was carried over by the plaintiffs therein before the Appellate Forum. 6. Mr. Banerjee, learned Counsel further submits that while filing the present writ petition, the appellant did not disclose any of the said suits and/or the fate thereof before the Writ Court. He thus, contends that for suppression of material facts, the writ petition should have been dismissed in limine. 7. Mr. Banerjee further submits that the Writ Court cannot assume the jurisdiction of the West Bengal Land Reforms and Tenancy Tribunal Act for passing any direction upon the concerned BL & LRO for demarcating the land as prayed for by petitioners/appellants in their applications submitted before the BL & LRO. Mr. Banerjee further argues that Section 8 of the West Bengal Land Reforms and Tenancy Tribunal Act ousted the jurisdiction of the High Court to entertain such writ petition. Mr. Banerjee thus, invites us to interfere with the impugned order and also for dismissal of the writ petition. 8. Mr. Bhattacharjee, learned advocate appearing for the writ petitioner/respondent in his usual fairness submits that the facts relating to the filing of the civil suits by the respective parties relating to the suit properties have not been disclosed by his client in the writ petition. He, however, has drawn our attention to the writ petition which was earlier filed by Mr. Banerjee’s client being W.P no. 1351 (W) of 2017 to impress upon us that the appellant herein also were equally guilty for non-disclosure of the facts relating to the filing of the suit by his client and passing of a decree for declaration and permanent injunction in the said suit. Mr.
Banerjee’s client being W.P no. 1351 (W) of 2017 to impress upon us that the appellant herein also were equally guilty for non-disclosure of the facts relating to the filing of the suit by his client and passing of a decree for declaration and permanent injunction in the said suit. Mr. Bhattacharya further submits that when a Civil Suit was filed by the appellants herein and further when the said suit was decreed declaring the appellants’ right over the suit property and a decree for permanent injunction was also passed in favour of the appellants herein, the writ petition filed by the appellants ought to have been dismissed for non-disclosure of civil suit filed by the appellants and the fate thereof in the said petition and also for the reason that adequate remedy was available to Mr. Banerjee’s client under the Civil Procedure Code for executing the decree for permanent injunction, in case there was any breach and/or violation of the decree for permanent injunction by anyone. He thus argued that Mr. Banerjee’s client could have approached the Civil Court for executing the decree for permanent injunction instead of approaching the writ court for the reliefs they claimed therein. He thus, submits that the appellants herein were equally guilty for suppression of material facts before the writ court while moving the earlier writ petitioner being W.P no. 1351(W) of 2017. 9. He thus, submits that when both the parties are equally guilty of suppression of material facts before the Writ Court, the writ petition which was filed by his client can not be dismissed for nondisclosure of material facts. He, thus, supported the impugned order. 10. Let us now consider the acceptability of the submission of the learned counsel appearing for the respective parties in the facts of the instant case. 11. Here is the case where we find that both parties are equally guilty for suppression of material facts in their respective writ petitions. Facts remain, now the every details relating to the earlier litigations have now been disclosed before us. We find a decree for declaration and for permanent injunction had already been passed in favour of the appellants by the Civil court of competent jurisdiction in respect of the dispute between two rival claimants belonging to two different communities. The said decree attained its finality.
We find a decree for declaration and for permanent injunction had already been passed in favour of the appellants by the Civil court of competent jurisdiction in respect of the dispute between two rival claimants belonging to two different communities. The said decree attained its finality. On the contrary, we find that the respondents have failed to obtain any interim injunction in the suit which was filed by the respondents. 12. They have also failed to obtain any interim injunction in the appeal, which was filed by them before the appellate forum. 13. Since the parties are litigating for their civil rights before the civil court which, in our view, is the competent Court to decide the dispute regarding the rival claims of title of the parties relating to the suit property, the present writ petition is not maintainable. 14. That apart, we find that the reliefs which are claimed by the writ petitioner/respondent in the present writ petition i.e. for issuance of direction upon the concerned BL & BLRO to demarcate the land in question is not a subject over which this Court retains its jurisdiction in view of Section 8 of the West Bengal Land Reforms and Tenancy Tribunal Act. The writ petition, in our view, also cannot be entertained in respect of the reliefs claimed by the writ petitioner/respondent in the writ petition. 15. We, however, have noticed that the writ petitioner/respondent herein has filed an application before the concerned BL & LRO for demarcation of the land in question. Without entering into the merit of the said application, we simply observe that in case the respondents are aggrieved by inaction of the concerned BL & LRO, they may take recourse to the law as permissible before the appropriate authority for redressal of their grievances. 16. Before parting with we, however, make it clear that maintenance of the law and order is the duty of the State authority. As such, in case any disturbance is apprehended or any activities is carried over the disputed property creating the breach of peace and/or public tranquillity, the State authority will take appropriate steps to maintain the peace and public tranquillity in and around the suit property. 17.
As such, in case any disturbance is apprehended or any activities is carried over the disputed property creating the breach of peace and/or public tranquillity, the State authority will take appropriate steps to maintain the peace and public tranquillity in and around the suit property. 17. The appeal and the applications are thus, disposed of in view of the conclusion which is arrived at by this Court, as we feel that no useful purpose will be served by keeping the writ petition pending any more. 18. As such, the writ petition is also deemed to be disposed of. Impugned order which is passed in the writ petition is set aside. 19. The Information Slip relating to the abatement of the suit being Title Suit No. 137 of 1986, which is produced by Mr. Banerjee in court, be kept with the record. 20. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.