Akram Ali Sardar vs State Of West Bengal & Ors.

The writ petitioner in this Article 226 petition is trying to enforce an order of a civil court directing status quo in respect of a property in a suit as

appears from the plaint annexed to the writ petition starting from page 24 of the writ petition (Annexure P2). The order of status quo as passed by the

learned Civil Court is on page 31 of the writ petition.

Though it is the express case of the plaintiffs in the plaint (the writ petitioner is one of the plaintiffs) that the defendants â€" one of whom is the private

respondent here â€" are trespassers and have been using and occupying the ‘B’ schedule property as trespassers on and from May 1, 2015 and

further that the land in question contains a kutcha structure with asbestos shed, the order passed by the learned civil court in Title Suit No.85 of 2015

being Order No.9 dated December 16, 2015 is as follows:â€

“Hence it is ordered that the application for temporary injunction is allowed on contest and both the parties are directed to maintain status quo over

the suit property with regard to possession, nature and character as on 16/12/2015 till disposal of the instant suit (prime offensive plaintiffs are in

possession) and accordingly order dated 22/05/2015 is hereby made absolute and accordingly prayer for extension of ad interim injunction is rejected

as temporary injunction petition has already been disposed of.â€​

Though it is the case of the writ petitioner that suppressing this order the private respondent abused the process of the criminal court to obtain an order

under section 144 CrPC such that his business in the shop room was not disturbed, and that this order was set aside by this court on November 20,

2017 still the police did not stop the private respondent from carrying his business, I believe that the submissions made on behalf of the writ petitioner

are wholly misconceived and based on a wrong appreciation of the fact in the pleadings made by the writ petitioner in the plaint.

Once the writ petitioner accepts in a verified plaint and reiterates in the present writ petition that the private respondent was a licensee whose licence

was revoked and thereafter he is a trespasser in illegal use and occupation of the suit property, an order of status quo cannot be interpreted to mean

that the writ petitioner qua the plaintiff is in possession of the property as held by the learned civil court which I have extracted above. The learned

civil court, it is clear, acted in total non-application of mind while passing the said interim order of status quo, where it held that the “prima offensive

plaintiffs are in possession†which is contrary to the pleadings of the petitioner on record. Accordingly, on the own admission of the plaintiffs, the

defendants are in possession of the suit property and any application for status quo or any order of status quo would enable the private respondent to

continue to use the property as the private respondent was using subject to the result of the suit.

Though it is the case of the writ petitioner that the private respondent is carrying on business illegally from the suit shop, the fact that there is a shop

on the land admitted by the plaintiffs shows that at the time when the status quo was passed, the business was already running. This fact is further

supported by a document issued on August 23, 2010 by the Prodhan of the local Gram Panchayat which clearly indicates that in order to carry on his

livelihood, the private respondent was carrying on business of Sardar Mudi Stores from the said construction. A copy of this certificate produced today

by the private respondent is taken on record. The private respondent and the writ petitioner are uterine brothers.

Therefore, a private dispute between two brothers over a property has been forcibly stretched on the basis of submissions which are not correct to try

and bring it within the ambit of Article 226 of the Constitution. The allegation that the private respondent started business only after obtaining the order

from the Executive Magistrate in 2015 is false on the face of the records. Though I acquit the learned advocate for the petitioner of any intention to

mislead the court, for after all she is a creature of instructions. The facts, on instruction, are given and continued to be given in 2018 that business was

not started until December 16, 2015 when the records show that the business was running at least from August 2015, if not earlier, clearly shows that

the writ petitioner has not come to this court with clean hands.

Therefore, I decline to exercise jurisdiction under Article 226 of the Constitution in this matter. However, the court takes strong exception to the act of

the police authorities of Gosaba police station are showing the learned advocate herself as a complainant on page 45 of the writ petition being

Annexure P7. The learned advocate had communicated orders of the various courts, including this court, to the police authorities seeking their

compliance. If for asking their compliance and the advocate is shown as a complaint, it shows ignorance of law on the part of the police authorities at

the very best and ulterior motives at the worst. The police ought to have recorded in such case the name of the learned advocate’s client as the

complainant if at all.

With the above observations, the writ petition, which is dismissed with regard to the reliefs prayed for as aforesaid, stands disposed of. This order

shall, of course, not be construed to be a decision on merits in respect of the title suit, or in respect of the rights of the parties involved in the title suit,

or in respect of the actual date when the business was started by the private respondent. The learned civil court will decide the suit not being

influenced by any observation made herein. No costs. Certified website copy of this order, if applied for, shall be given to the parties.