At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY
For the Appellant: Bikash Ranjan Bhattacharya Sr. Advocate, Amber Majumder, Dilip Kumar Kundu, Puspendu Chakraborty, Advocates. For the Respondents: Amitesh Banerjee, Somraj Dhar, R9, Pramit Kumar Ray, Sr. Advocate, Avirup Mandal, Rajib Mullick, Advocates.
The petitioner, being a government company as defined in Section 617 of the Companies Act, 1956 and a public sector enterprise of Government of India under the administrative control of the Ministry of Petroleum and Natural Gas (herein after referred to as petitioner only) has filed this writ application under Article 226 of the Constitution of India with the following prayers:
a. A writ in the nature of Mandamus commanding the Respondents and each of them to act in accordance with law;
b. A writ in the nature of Mandamus commanding the Respondent Nos.1 to 4 to render Police Assistance in running the retail outlet of the petitioner at Premises No.177E, S.P. Mukherjee Road, Police Station:
Tollygunge, Kolkata- 700026 and to remove obstruction if any created by the Private Respondent Nos. 5 and 6 particularly in terms of the Order dated 09.12.2014 passed by the Learned Executive Magistrate 1st Court at Alipore in M.P. Case No. 2656 of 2014.
c. A writ in the nature of Certiorari commanding the Respondents and each one of them to certify and transmit record of the case of this Hon’ble Court so that this Hon’ble Court may upon considering the same pass appropriate order so as to do conscionable justice to the petitioner;
d. Injunction restraining the Private Respondent Nos. 5 and 6 and their men and agents from obstructing the petitioner to operate the retail outlet peacefully from the said premises;
e. Direction be passed upon the Respondent Nos. 1 to 4 to render police assistance to run the said retail outlet of the Petitioner Corporation through its appointed adhoc dealer M/s. Woodland Service Station by removing the obstruction if any made by the respondent Nos. 5 and 6 and their men and agent;
f. Rule NISI in terms of prayers a. to c. above;
g. Interim order in terms of prayer d. & e above;
h. Costs of this application;
i. Such further Order and/or Orders as Your Lordships may deem, fit and proper.
The specific case of the petitioner is that the state authorities and the private respondent no. 5 and 6 are illegally and wrongfully obstructing the petitioner to operate the retail outlet at 177E S. P. Mukherjee Road, P.S- Tollygunge, Calcutta- 700026. The said property actually belonged to one Chandi Madhav Banerjee. Chandi Madhav Banerjee by a registered lease deed dated 10th November, 1954 granted lease in respect of the said immovable property in favour of the erst while company namely Caltex (India) Limited finally for a period of 10 years with renewal clause and thereafter the said lease was tim
Please Login To View The Full Judgment!
to time renewed on 29th April, 1966 and subsequently on 14th April, 1975 with renewal clause. While the said lease was continuing, the Caltex (acquisition of shares of Caltex oil refining) (India) Limited Act 1977 came into effect and the said Act was introduced to provide the acquisition and transfer of the right, title and interest of Messers Caltex (India) Limited in relation to its understanding with a view to ensuring co-operation in distribution and utilization of the petroleum product distributed and marketed in India by the said erst while company and for matters connected there with or incidental thereto. The Central Government in fact on the strength of the aforesaid Act took over the right, title and interest of the said company and thereby the Central Government has become the owner of such company or lessee as the case may be, only to such undertaking and all the rights and liabilities of the Central Government in relation to such undertakings shall on and from the date of such vesting be deemed to have become the rights and liabilities of the Government company. The Central Government by notification dated 9th May, 1978 transferred the right of erst while company in favour of Hindustan Petroleum Corporation Limited being the government company and as such the petitioner company has become the lessee in respect of the said immovable property. The petitioner has further stated that the said immovable property being premises no. 177E S. P. Mukherjee Road, Calcutta- 700026 is governed by the Thika Tenancy Act, 1981 and also governed by the West Bengal Thika Tenancy (Acquisition and Regulations) Act, 2001. In terms of the provisions of the aforesaid Act, the property under reference has been vested with the Government of West Bengal and your petitioner is paying the rent of such property to the government of West Bengal and in fact, whether the said property is covered under Thika Tenancy Act is under consideration of appropriate authorities namely controller Calcutta Thika tenancy. The petitioner has obtained an information wherefrom it appears that the premises no. 177E S. P. Mukherjee Road is prima facie thika tenanted property subject to final determination under Section 5(3) of West Bengal Thika Tenancy (Acquisition and Regulation ) Act, 2001.One Utpal Sengupta(since deceased) was initially appointed by the erst while Caltex (India) Limited in the year 1974 as dealer in sale and supply of petrol/diesel from the said retail outlet and he was operating the said retail outlet under the name of Power Pack India in premises no. 177 E S. P. Mukherjee Road, Calcutta- 700026. The said dealership was time to time renewed by the dealership agreement dated 10th December, 2007 and thereafter dated 23rd September, 2013 for a period of 10 years with effect from 3rd November, 2011 vide annexure P3.Utpal Sengupta(since deceased) defaulted in payment of the price of petroleum product although he sold the same to the public and a huge amount of Rs.25,98,370.82 became due and outstanding, payable by the said deceased dealer. Moreover, the performance of the said retail outlet was very poor and according to the dealership agreement, the poor sales performance is the violation of the terms and conditions of the agreement. In that view of the performance of dealership, the petitioner served a show cause notice dated 21st December, 2014 to the deceased dealer calling upon him to show cause as to why necessary action shall not be taken by the petitioner against him for violation of certain clauses of the dealership agreement. The dealer was then suffering from serious illness and as such his wife Smt. Manjulika Sengupta informed the petitioner that her husband passed away on 28th December, 2014. The petitioner then appointed Ms. Woodland Service Station as a temporary dealer to operate the said retail outlet on adhoc basis in accordance with terms and conditions contained in the letter dated 2nd January, 2015 vide annexure P7. Smt. Manjulika Sengupta accordingly handed over the retail outlet along with structures and equipment to the petitioner through it’s officers on 2nd January, 2015 and after taking possession of the said retail outlet, the said retail outlet was handed over to Shri Vishal Agarwal for and on behalf of Ms. Woodland Service Station. At the time of appointing adhoc dealer on temporary basis, the petitioner noticed that police personnel were posted and accordingly the officers of the petitioner company met the officer in charge of Tollygunge police station.The officer in charge of Tollygunge police station informed that in view of the order passed by the learned Magistrate, 1st Court at Alipore dated 9th December, 2014 in MP case no. 2656 of 2014 the police personnel were posted and has further informed that he was not in a position to provide any assistances to operate the said retail outlet. The petitioner company further came to know that there was a partnership agreement between the deceased dealer namely Utpal Sengupta and one Mr. Shaunak Bagaria and Mr. Jyoti Prakash Bagaria(private respondent no. 5 and 6) for operating the said retail outlet. The officers of the petitioner company then requested the Tollygunge police station to provide police assistance to run the retail outlet but the police did not take any action. The alleged partnership in between Utpal Sengupta(since deceased) with private respondent no. 5 and 6 being contrary to the dealership agreement cannot be given effect to and as such the private respondent no. 5 and 6 have had no authority to run the dealership under the garb of partnership agreement. The petitioner came to know from a letter dated 1st October, 2007 sent by Ms. B. M. Bagaria and Company solicitor and advocate that the property being premises no. 177E S. P. Mukherjee Road, Calcutta- 700026 has been sold out by Usha Rani Banerjee, Ashoka Pathak and Smt. Rina Mukherjee in favour of Shaunak properties private limited and it appears from the alleged document that Mr. Jyoti Prakash Bagaria, Smt. Kusum Bagaria, Miss Shruti Bagaria and Shaunak Bagari joined in the said registered indenture as confirming parties. The joint owners thereafter filed the suit being Title suit no. 179 of 1993 in the Court of learned Civil Judge(Junior Division) 3rd Court, Alipore against the petitioner for a decree of eviction from the said property and other reliefs but the said suit was ultimately dismissed for default on 16th May, 2008. The specific case of the petitioner is that the petitioner is a thika tenant and has been occupying the said immovable property since 1954 but the state authorities and private respondent no. 5 and 6 with the connivance of police authorities are obstructing to perform the functions of the petitioner in operating the said outlet without any reason at all.In para 54 of their petition, the petitioner has specifically stated that the order passed by learned Executive Magistrate in M.P. case no. 2656 of 2014 dated 9th December, 2014 has been seized to operate in as much as the applicant of that case(Utpal Sengupta) died on 29th December, 2014.The petitioner has further stated in its supplementary affidavit that Ms. Shaunak Properties Private Limited represented by its director namely Smt. Kusum Bagaria wife of Jyoti Prakash Bagaria being one of the directors of Shaunak properties private limited has filed title suit no. 12 of 2015 in the Court of learned Civil Judge(Jr. Divn.), 3rd Court, Alipore and learned Civil Judge was pleased to pass an order of statusquo in respect of nature, character and possession of the suit property till the disposal of this suit. However, the said order was set aside in Misc Appeal no. 81 of 2015. The order of learned Additional District Judge was tested before the Hon’ble High Court in CO no. 3751 of 2015 but the Hon’ble High Court also has refused to interfere with the order passed by Additional District Judge, Alipore. The copy of such order has been annexed with the supplementary affidavit.In the premises set forth above, it is apparent that the petitioner has been claiming possession over the property as a lessee under Chandi Madhav Banerjee or in the alternative as a thika tenant under the State of West Bengal. The further case of the petitioner is that Utpal Sengupta(since deceased) was appointed as a distributor and after his demise the retail outlet of the petitioner company was handed over to Ms. Woodland Service Station. Respondent no. 9 has only filed affidavit in opposition. The remaining respondents did not turn up despite service of notice and did not contest the case. The specific case of the contesting respondent is that respondent no. 9 is the owner of premises no. 177 E S. P. Mukherjee Road, Calcutta-700026 on the strength of a deed of conveyance dated 19th March, 2007 and the said deed of conveyance was contemporaneously served upon the writ petitioner way back in the year 2007 and the said fact has been admitted by the writ petitioner. The writ petitioner was never in actual physical possession over the property. The state authorities have got no jurisdiction to decide the question of title and possession. The writ petitioner has deliberately suppressed the actual state of affairs in the instant writ application and in view of the aforesaid fact the writ petition, is liable to be dismissed simply on the ground that the order passed by learned Executive Magistrate has been stayed by the District Judge, Alipore in criminal motion no. 11 of 2015 by its order dated 5th January, 2015. Another writ application being no. 27491 of 2015 has been filed by the present petitioner and thereby the petitioner is guilty of forum shopping. The specific case of the answering respondent is that respondent no. 9 is in possession of the suit property and the petitioner has manufactured documents in collusion with respondent no. 7 and 8. The answering respondent has denied all the material allegations contained in the writ petition as well as in the supplementary affidavit filed by the officer of the petitioner company.Learned senior Advocate appearing on behalf of the petitioner company contended that the petitioner company has been operating the retail outlet through one Utpal Sengupta(since deceased) and thereafter the said retail outlet was handed over to another company on adhoc basis namely Ms. Woodland Service Station. The respondent no. 9 in collusion with private respondent no. 5 and 6 have tried to encroach upon the dealership of Utpal Sengupta(since deceased) and thereafter has been causing disturbances in the operation of the said retail outlet. Learned senior Advocate further contended that despite specific information to the state authorities, they are also not taking any steps to help the petitioner company to run the retail outlet smoothly.Mr. Bhattacharjee learned senior Advocate contended that the jurisdiction of the High Court in dealing with the applications under Article 226 of the Constitution of India is enormous and even greater than the jurisdiction of the Supreme Court under Article 32 of the Constitution of India. It is further submitted that High Court by invoking the jurisdiction under Article 226 of the Constitution of India has got requisite power to direct the authorities to restore the possession of the petitioner company so that the petitioner company can run the retail outlet for the benefit of the public. The copy of the order passed by Hon’ble High Court in CO no. 3751 of 2015 has been placed before this Court to establish that respondent no. 9 has taken forcible possession over the suit property. In para 13 learned Judge has specifically observed that the plaintiff/petitioner has taken so called possession otherwise than in accordance with law and on the basis of such possession, the plaintiff/petitioner claimed for an injunction which was refused by the Court below. Learned senior Advocate has relied on the following decisions in support of his contention that the High Court has got the power to direct for restoration of possession as well as for removal of any obstruction from the suit property. It is submitted that Hon’ble Supreme Court as well as the Division Bench of our High Court have accepted that even without any prayer the Court may interfere with the subject matter and direct the parties to restore possession. Learned senior Advocate has referred the following decisions:1. 1980 (3) SCC 625(Minerva Mills Ltd. Vs. Union of India & Ors).2. 2015(9) SCC 447(Rahul Yadav & Anr. Vs. Indian Oil Corporation Limited & Ors).3. AIR 1985 Cal 248(Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty).4. AIR 1976(1) SCC 194(Rameshwar & Ors. Vs. Jot Ram & Anr.)5. (2003)6 SCC 581(T. K. Rangarajan Vs. Government of T. N. & Ors).6. (1996) 2 SCC 205(Puran Singh & Ors. Vs. State of Punjab & Ors).Learned Advocate appearing on behalf of respondent no. 9 drew the attention of the Court in respect of the report of police submitted before the Executive Magistrate, wherefrom it transpires that the police authorities clearly mentioned that respondent no. 9 was in possession of the property.It is also apparent that the order passed by learned Executive Magistrate was stayed by learned Sessions Judge, South 24 Parganas on 5th January, 2015 but there is no such reflection in the affidavit of the instant writ application, which was sworn in on 16th January, 2015. It is submitted by learned Advocate for the contesting respondent that the petitioner has specifically suppressed the material fact that the order passed by Executive Magistrate was stayed by learned Sessions Judge on 5th January, 2015. Learned Advocate further drew the attention of the Court that the property was/is under the possession of respondent no. 9 as per the police report.Mr. Ray appearing on behalf of the contesting respondent contended that the disputed question of title and possession in respect of a property cannot be decided by a writ Court by exercising the discretion as contemplated under Article 226 of the Constitution of India. It is further submitted that Vishal Agarwal is actually doing everything with the help of the present petitioner and unfortunately the present petitioner being government official has lent it’s name to serve the purposes of Vishal Agarwal. The main contention in the application under Section 144 of the Code of Criminal Procedure, filed by one Utpal Sengupta(since deceased) was that the life of Utpal Sengupta was at stake though at the relevant point of time Utpal Sengupta was admitted in nursing home. The present petitioner was not a party in the proceeding under Section 144 of the Code of Criminal Procedure yet the petitioner has filed this writ application for enforcement of an order which was obtained by Utpal Sengupta knowing fully well that such order was stayed by learned Sessions Judge. The present petitioner suppressed the factual aspect to the effect that Utpal Sengupta was in nursing home and was not in possession of the property though respondent no. 9 was in possession of the property at the time of filing of such writ application. The petitioner is not entitled to get any equitable relief. Moreover, the decisions referred to by learned Advocate for the petitioner are with regard to the properties which were under the control of the plaintiff and the plaintiff was dispossessed during the subsistence of injunction order passed by learned Court. That is why, it has been observed by all the Courts consistently that the possession of the plaintiff ought to be restored since the plaintiff was dispossessed during the pendency of the suit. Mr. Ray further contended that such principle of law enunciated by the Supreme Court as well as by our High Court cannot be applied in the case under reference since admittedly respondent no. 9 was/is in possession of the property and the petitioner never got the possession of the property and they were never dispossessed during the pendency of this writ application or any such application pending before the Executive Magistrate.On the contrary Mr. Ray has referred the following decisions in support of his contention:1. (1992)4 SCC 61( Mohon Pandey and Anr. Vs. Usha Rani Rajgaria(smt.) & Ors.)2. (2006)4 SCC 501 (P. R. Murlidharan & Ors Vs. Swami Dharmananda Theertha Padar & Ors.)3. Writ petition no. 22998 (W) of 2015 (Sri Mrinal Kanti Guha & Anr. Vs The State of West Bengal & Ors.)4. (2011)11 SCC 786 (Kalyan Singh Chouhan Vs. C. P. Joshi)5. 2011(3) CHN Cal 460(Kalpana Pal Vs. State of W.B.).It is well settled principle of law that a writ application has to be decided on the basis of the pleadings on record as well as on the basis of the prayers appended with the writ. Prayers of the writ application reveal that the petitioner has prayed for police assistances in terms of the order dated 9th December, 2014 passed by learned Executive Magistrate in MP no. 2656 of 2014. Admittedly the said order was stayed by learned Sessions Judge on 5th January, 2015 and the writ was filed thereafter. Secondly, injunction has been prayed for to restrain private respondent no. 5 and 6. Thirdly, direction has been sought for so that respondent no. 1 to 4 should provide police assistance to run the said retail outlet of the petitioner/ corporation through its appointed adhoc dealer Ms. Woodland Service Station by removing the obstruction, if any, made by respondent no. 5 and 6 and their men and agent.In any view of the matter the writ Court shall not determine the right, title and interest of the parties as well as the possession of the parties in respect of a particular property. The writ Court cannot usurp the jurisdiction of a Civil Court and thereby decide the right, title, interest and possession of the parties in respect of a particular property. On scrutiny of the entire writ application it transpires that the property originally belonged to one Chandi Madhav Banerjee and thereafter the property has been vested to the State of West Bengal subject to final decision of the controller under West Bengal Thika Tenancy Act. On the contrary the answering respondent has been claiming to be the owner of the property on the basis of a registered sale deed executed way back in the year 2007. The said fact was duly intimated to the petitioner company in the year 2007 by the Advocate of respondent no. 9. It is, therefore, really difficult to decide the ownership of the parties or the possession of the parties in respect of the property under reference.Admittedly, the writ application has been filed praying for specific direction against the state authorities to provide police assistance to the petitioner so that the petitioner can operate the retail outlet through its newly appointed agent. There is absolutely no pleadings or prayer in the writ application for restoration of its possession. The petitioner cannot pray for restoration of possession in a writ application. In fact the writ application has been drafted for restoration of possession of the petitioner under garb of police assistance. It has been specifically observed by the Hon’ble Supreme Court in the decision reported in (1992)4 SCC 61( Mohon Pandey and Anr. Vs. Usha Rani Rajgaria(smt.) & Ors.)that the High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies under the general law civil or criminal are available. It is not intended to replace the ordinary remedies by way of suit or application available to a litigant. The jurisdiction under Article 226 of the Constitution of India is special extra ordinary and should not be exercised casually or lightly. The dispute between the parties relating to property rights cannot be decided in a writ application. The Hon’ble Supreme Court in the decision reported in (2006)4 SCC 501 (P. R. Murlidharan & Ors Vs. Swami Dharmananda Theertha Padar & Ors.)has been pleased to observe that a writ for “police protection” has only a limited scope as when the Court is approached for protection of rights declared by a decree or by an order passed by a civil Court. It cannot be extended to cases where rights have not been determined either finally by the Civil Court or at least at an interlocutory stage in an unambiguous manner and then too in furtherance of the decree or order. Learned single Judge while disposing writ application no. 22998(W) of 2015 has also relied on the decision of (2006)4 SCC 501 (P. R. Murlidharan & Ors Vs. Swami Dharmananda Theertha Padar & Ors.)(Supra)to hold that a writ petition for police protection would not be maintainable unless of course the test mentioned in paragraph 19 of the said decision is complied with. The Apex Court in the decision reported in (2011)11 SCC 786 (Kalyan Singh Chouhan Vs. C. P. Joshi)has specifically observed that pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help to the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. Therefore a decision of a case cannot be based on grounds outside the pleadings of the parties. It is settled legal position that “as a rule relief not founded on the pleadings should not be granted.”In the premises set forth above it may safely be stated that the property under reference is in possession of respondent no. 9. The legality of such possession cannot be determined in a writ application.On the contrary, it transpires from the materials on record that the property has either been vested to the State of West Bengal or the same is under possession of respondent no.9. The petitioner being a Government company can definitely agitate the said matter before the appropriate authority for getting back the possession of such property. The writ jurisdiction cannot be invoked for restoration of the possession of such property in favour of the petitioner. The Supreme Court in the decision reported in 2015(9) SCC 447 (Rahul Yadav and another Vs. Indian Oil Corporation Limited and others) has directed the appellant to hand over peaceful possession of the land and the structure and other fixtures standing thereupon to the corporation after demolishing the wall. Such direction was given by the Apex Court by upholding the order passed under public premises (eviction of unauthorized occupants) Act 1971. The unauthorized occupant was directed to be evicted by appropriate authority and while upholding the said order the Apex Court has passed such direction.The petitioner company in the same line of action can initiate necessary proceeding so as to redress its grievances against respondent no. 9.In any view of the matter this Court cannot accept the case of the petitioner company and direct the respondent no. 9 to vacate the suit premises by determining the right, title, interest and possession of the parties to this proceeding by usurping the jurisdiction of civil Court and accordingly the instant application being devoid of merit is dismissed. Another writ application being no. 27491(W) of 2015 has been filed with the self-same prayer calls for no action in view of the dismissal of writ petition no. 2308(W) of 2015. Both the writ applications are accordingly disposed of in terms of the aforesaid order. Let a Photostat copy of this judgment be retained with writ application no. 27491(W) of 2015 for further reference.No order as to costs.Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.