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Marcandy Prasad Radha Krishna Prasad Private Ltd v/s Rani Sati Metal Industries

    A.P.O.T Appeal No. 330 of 2004

    Decided On, 13 September 2004

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ALTAMAS KABIR & THE HONOURABLE MR. JUSTICE ASIT KUMAR BISI

    For the Appearing Parties: A.K. Chakraborty, K.N. Mukherjee, P. Banerji, P. Chatterji, P.P. Banerji, S.N. Mukherjee, Shyamal Sarkar, Soumya Kanti Chatterjee, Advocates.



Judgment Text

ALTAMAS KABIR, J


(1) THE short point involved in this appeal is whether the learned Single Judge had jurisdiction to issue an interim order in terms of prayers g (i) and (ii) of the writ petition by his order dated 21st June, 2004, in the writ application filed by the respondent No. 1 herein. In order to appreciate the stand taken on behalf of the appellants, prayers g (i) and (ii) are reproduced hereinbelow :-


" (g) Appropriate direction be given directing the respondent Nos. 1 to 6 and each of them: (i) to post a police picket comprising of at least 15 armed police personnel including two Armed Officers, at the entrance of the factory of your petitioners situated at No. 46, Dasarath Ghosh Lane, P. S. Bantra, Dist. Howrah in compliance with section 13 of the Indian Police Act, 1861 read with paragraph 25, Chapter VII of the Police Regulations, at the cost of the petitioners. (ii) to ensure free ingress and egress of the petitioners' officers, employees and callers to the said factory of the petitioners situated at No. 46, dasarath Ghosh Lane, P. S. Bantra, District-Howrah and free movement of truck, lorries and trailers carrying out its activities to the said factory without any interference, obstruction by any anti-social elements or outsiders, including the respondent No. 8, and also to ensure that no one moves around the entrance of the said factory or threat the workers with arms or weapons and that no unlawful assembling, unlawful intimidation or any breach of peace takes place in the locale, in and around the premises No. 46, Dasarath Ghosh Lane, P. S. Bantra, District Howrah. "


(2) IT is the case of the petitioners that by an agreement dated 27th June, 2001, the appellant herein leased out its factory situated at premises No. 46, dasarath Ghosh Lane, P. S. Bantra, Dist. Howrah, to the writ petitioners for a period often years with provision for renewal for a further period of ten years, at a monthly rental of Rs. 40,000/ -. One of the covenants contained in the Lease deed requires the lessee, namely, the writ petitioners to pay to C. E. S. C. Limited, as and when required, a sum of Rs. 5 lakhs on account of the past electricity dues of the demised premises and for obtaining re-connection of the existing power line in the demised premises. It was also agreed that the lessor would refund the said sum of Rs. 5 lakhs at the rate of Rs. 10,000/- per month to the lessee and/or such amount would be adjusted against the monthly rent of rs. 40,000/ -. It was also stipulated that the lessee would pay the electricity charges on the basis of units as consumed from the relevant meter lying in the demised premises within the stipulated period contained in the electricity bills to be received from C. E. S. C. Limited, without any deduction or abatement whatsoever.


(3) ACCORDING to the writ petitioners, on or about 5th June, 2004, the electric supply to the factory was disconnected by C. E. S. C. Ltd. without any notice of disconnection. Inasmuch as, attempts were allegedly made by the respondent no. 8 in the writ petition, who is the appellant No. 2 herein, to disrupt the running of the writ petitioners' business the writ petitioners first moved an application under section 144 (2) of the Code of Criminal Procedure before the learned Sub-Divisional Magistrate (Executive) Sadar, Howrah. By an order dated 7th June, 2004, on the said application, the learned Executive Magistrate directed the police authorities to maintain peace in the area of the said factory. Inasmuch as, in spite of such order the writ petitioners/respondent Nos. 1 and 2 herein, continued to be threatened and there was every apprehension of a serious breach of peace, a writ petition under Tender No. 243 of 2004, was filed by the said respondent Nos. 1 and 2 on 9th June, 2004, challenging such disconnection of electricity to the demised premises. During the hearing of the said writ petition, the C. E. S. C. Limited disclosed two letters dated 15th April, 2004 and 1st June, 2004, issued by the appellant No. 2 herein allegedly on behalf of the appellant No. 1 company instructing the C. E. S. C. authorities to disconnect the electric connection to the factory of the respondent Nos. 1 and 2.


(4) AFTER being served with a copy of the writ petition, the appellant No. 2 herein filed a suit, being Title Suit No. 150 of 2004, alleging that for non-payment of electric charges by the writ petitioners, who are the defendants in the suit, the C. E. S. C. Ltd. , had already disconnected supply on 5th June, 2004, and had burdened the plaintiff company with charges towards the consumption of electricity and further liability for payment of additional security and reconnection charges. An application for temporary injunction was filed in the said suit in which the letters dated 15th April, 2004 and 1st June, 2004 were suppressed and an ex parte ad interim order of status quo was passed in the suit on 11th June, 2004.


(5) THE respondent Nos. 1 and 2 herein thereupon filed an appeal in the court of the learned District Judge at Howrah, (Sadar), being Misc. Appeal No. 158 of 2004, against the said order of the learned Civil Judge (Junior Division), 2nd Court, Howrah. The Misc. Appeal was taken up for admission on 21st June, 2004, when the appeal was duly admitted, but since a caveat had been filed the stay application in the appeal could not be taken up for disposal and a further date was fixed for hearing of the appeal, with liberty to the respondents in the appeal, who are the appellants in the instant appeal, to file their written objection.


(6) ON the same date, that is, on 21st June, 2004, the writ petition filed by the respondent Nos. 1 and 2 herein was taken up for consideration by the learned single Judge who by his order under challenge in the appeal directed the Officer-in-Charge, Bantra Police Station, to render all assistance to the respondent nos. 1 and 2 herein to carry on their business in the premises in question and to post a police picket therein at the cost of the said respondents. The Officer-in-Charge, Bantra Police Station, was also directed to make an investigation and to file a report. In addition, the learned Single Judge also passed an order in terms of prayers g (i) and (ii) of the petition as set out hereinabove.


(7) AS indicated hereinbefore, it is the said order of the learned Single Judge, which is the subject-matter of challenge in the instant appeal.


(8) APPEARING in support of the appeal, Mr. P. P. Banerjee, learned Advocate, advanced submissions mainly on questions of law relating to the competence of the learned Single Judge to issue the order impugned in the appeal.


(9) IT was firstly urged by him that under Rule 26 of the Writ Rules which have come into force from 18th November, 1999, no interim order can be passed affecting the rights of a party who has not been served with a copy of the writ petition and notice thereof, unless leave is granted by the Writ Court and reasons are recorded in the order granting such leave. Mr. Banerjee urged that by his order impugned in the appeal the learned Single Judge had passed an interim order in terms of prayers g (i) and (ii) without formerly granting leave or recording reasons as to why such interim order was being passed.


(10) MR. Banerjee urged that even if Rule 26 of the Writ Rules did not exist, by virtue of Rules 36 and 53 thereof the principles and provisions of the Code of civil Procedure relating to suits and miscellaneous applications under Order 39 Rules 1, 2 and 3 were applicable to matters under Article 226 of the constitution. In addition to the above, Mr. Banerjee submitted that even the , provisions relating to grant of tender numbers under the Original Side Rules, merely allowed the Court to direct whether the petition should be filed in the centralized Filing Section or whether the same could be moved in the Court. Mr. Banerjee submitted that the power to grant such tender number does not empower the Court to dispense with the requirement of recording a reasoned order granting leave to move the writ petition for an interim order without serving a copy thereof or notice in respect thereof on the respondents to be affected. In support of his aforesaid submissions Mr. Banerjee referred to the judgment of the Hon'ble Supreme Court in the case of Morgan Stanley Mutual fund vs. Kartick Das, reported in 1994 (4) SCC page 225, wherein the aforesaid principles were, inter alia, discussed.


(11) REFERRING to the decision of the Hon'ble Supreme Court in the case of puran Singh vs. State of Punjab and Ors. , reported in AIR 1996 SC page 1092. Mr. Banerjee submitted that, although, it had been held therein that the Writ court is not bound by the provisions of the Civil Procedure Code, it had been clearly indicated that it could make its own rules. Mr. Banerjee submitted that in the instant case such rules had been framed by this Court and Rule 26 of the writ Rules would cover a situation similar to that as envisaged by Order 39 rules 1, 2 and 3 of the Civil Procedure Code.


(12) MR. Banerjee also referred to the decision of this Court in Supratik Ghosh and Anr. vs. Pasari Housing Development Private Ltd. , reported in 2000 (1) CHN page 614, wherein the same principles were reiterated in proceedings under section 9 of the Arbitration and Conciliation Act, 1996, and it was also held that when an order is initially without jurisdiction, extension of the same is also without jurisdiction, because it purports to extend a nullity.


(13) MR. Banerjee submitted that the relief prayed for in the writ petition relating to alleged police inaction, was without any basis on account of the fact that of the two representations made the subject-matter of the allegation of inaction, the second representation was dated 21st June, 2004, itself. In other words, while the representation to the police authorities was made on 21st June, 2004, presumably in the morning, the writ petition was moved for inaction in response thereto in the afternoon. Mr. Banerjee added that the interim order granted on 21st June, 2004, and, thereafter, extended on 30th June, 2004, in terms of prayers g (i) and (ii) was, in fact, the same as the main prayers in the writ petition, being prayers b (i) and (ii), and by the ex parte ad interim order, without service of notice on the concerned private respondents, the final relief prayed for in the writ petition had virtually been given to the writ petitioners.


(14) MR. Banerjee urged that the Hon'ble Supreme Court had deprecated such a practice as would be evident from the decision of the Hon'ble Supreme court in Bank of Maharashtra vs. Race Shipping and Transport Company private Ltd. and Anr. , reported in AIR 1995 SC page 1368. Mr. Banerjee urged that having failed to obtain a stay order on 21st June, 2004, in Misc. Appeal No. 158 of 2004, directed against the ad interim order passed by the learned Single judge (Junior Division) in Title Suit No. 50 of 2004, the respondent Nos. 1 and 2 had moved the writ petition in the afternoon and had obtained the order from the learned Single Judge which has been impugned in the instant appeal.


(15) MR. Banerjee concluded his submissions on the note that the initial order having been passed by the learned Single Judge on 21st June, 2004, in violation of the Writ Rules and the relevant provisions of the Code of Civil Procedure in their application to writ proceedings in terms of Rules 36 and 53 of the Writ rules, the same was without jurisdiction and was, therefore, a nullity and subsequent extension of such an order was also a nullity and could not be sustained and or continued.


(16) APPEARING for the respondent Nos. 1 and 2 in the appeal, Mr. Saktinath mukherjee, learned Senior Counsel, firstly pointed out that the provisions of rule 26 of the Writ Rules were in no way applicable to the facts of the instant case, inasmuch as, the learned Single Judge had not passed any interim order against the respondent Nos. 7 and 8, who are the appellants in the instant appeal, but had directed the respondent Nos. 1 to 6, namely, the police authorities to take certain steps in compliance with the provisions of section 13 of the Indian Police Act, 1861, read with paragraph 25, Chapter VII of the police Regulations, at the cost of the petitioners. The other direction was also on the said respondents to ensure free ingress and egress of the petitioners' officers, employees and callers to the factory of the petitioners situated in the premises in question and for free movement of truck, lorries and trailers to and from the said factory without any interference and obstruction by any outsider including the respondent No. 8.


(17) MR. Mukherjee submitted that since no ad interim order had been passed against the appellants herein adversely affecting their interest, the question of complying with the provisions of Rule 26 and by necessary implication Order 39 Rules 1,2 and 3 of the Civil Procedure Code did not really exist.


(18) MR. Mukherjee submitted that the learned Single Judge had duly recorded the fact that in view of the allegations made in the writ petition that the appellant No. 2 was obstructing the respondents Nos. 1 and 2 herein from enjoying supply at the premises in question, it had become necessary to pass an interim order in the manner prayed for in prayers g (i) and (ii) to the writ petition. The directions which were given were not preventive in nature and merely directed the police authorities to see that the writ petitioners/respondents nos. 1 and 2 herein were able to pursue their business without any interference.


(19) MR. Mukherjee urged that even if it was conceded that the learned Single judge could not have passed the interim order on 21st June, 2004, without first complying with the provisions of Rule 26 of the Writ Rules, it was always open to the learned Single Judge or even the Appeal Court to pass a fresh order in the manner considered fit and proper.


(20) MR. Mukherjee submitted that it would be obvious from the fact that a suit was filed by the appellants herein, after having been served with notice of the writ petition on the self same subject, that the intentions of the appellants were mala fide and the interim order as passed in the writ petition was liable to be continued. Mr. Mukherjee submitted that in view of the terms and conditions of the lease agreement executed in favour of the respondent Nos. 1 and 2 herein on 27th January, 2001, the said respondent Nos. 1 and 2 herein were entitled to enjoy the supply of electricity through the existing meter upon payment of the outstanding dues as also the current bills which were to be adjusted in the manner indicated in the Lease Deed.


(21) MR. Mukherjee urged that the directions given by the learned Single judge regarding restoration of supply and also the installation of a separate supply in the name of the respondent company was within the jurisdiction of the learned Single Judge on the basis of the prayers made in the writ petition. Mr. Mukherjee submitted that the appeal was not only misconceived but entirely mala fide and was liable to be dismissed with cost.


(22) ON behalf of the State and the State respondents, it was submitted that in the instant case involving law and order problems, the Court was competent to give directions to the administrative authorities to maintain peace and tranquillity and it was for the administrative authorities to ensure that such directions and orders were duly implemented.


(23) HAVING considered the subm

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issions made on behalf of the respective parties, we are inclined to agree with Mr. Mukherjee that since no order had been passed by the learned Single Judge which would adversely affect and/or prejudice the interest of the appellants herein, no illegality had been caused in leave not having been granted in terms of Rule 26 of the Writ Rules. The directions which had been given by the learned Single Judge were merely to prevent a breach of the peace and to ensure that the writ petitioners/respondent nos. 1 and 2 herein could continue to operate their business without obstruction on the basis of the lease executed in their favour. Although, Mr. Banerjee has tried to argue that prayer g (ii), in fact, adversely affects the rights of the appellants, we are unable to accept such a submission, inasmuch as, the writ petitioner/respondent Nos. 1 and 2 had acquired an interest in the factory premises on the basis of the lease agreement and the steps taken thereunder by the parties. (24) WE thus see no reason to stay the operation of the order impugned in the appeal and the stay application is accordingly dismissed. Since nothing further remains in the appeal, the same is also disposed of by this order. (25) WE, however, make it clear that the order passed by the learned Single judge and/or observations made herein will not in any way prejudice the parties in the suits which are pending in the learned Court below, and the learned court below will be at liberty to pass such orders as it may consider fit and proper in the circumstances. There will be no order as to costs. (26) ALL parties to act on the xerox signed copy of the operative portion of this judgment on the usual undertakings. Appeal dismissed.
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