Hindustan Petroleum Corporation Ltd. vs State Of West Bengal & Ors.

Jyotirmay Bhattacharya, CJ.

By a common order dated 15th June, 2017, two writ petitions being W.P. 2308 (W) of 2015 and W.P. 27491 (W) of 2015 both filed by the writ

petitioners/appellants were disposed of by a learned Single Judge of this court. In the impugned order, the learned trial Judge held that the writ 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 the proceeding by usurping the jurisdiction of the civil court and accordingly, the writ petition was held to be devoid of any

merit. Thus, the first writ petition being W.P. 2308 (W) of 2015 was dismissed. The other writ petition being W.P. 27491 (W) of 2015 which was filed

by the writ petitioner/appellant against the respondent herein seeking identical reliefs also was dismissed in view of the dismissal of the first writ

petition. The legality and the propriety of the said order passed by the writ court, dismissing both the aforesaid writ petitions are challenged by the writ

petitioners/appellants before this court in this mandamus appeal.

Here is the case where we find that the writ petitioner/appellant and the respondent no. 9 are making rival claims of title over the property in question.

The private respondent no. 9 is claiming title over the property in question by way of purchase of the same from the admitted owner thereof for

valuable consideration in 2007. The writ petitioner/appellant, which was initially inducted by the admitted owner as a tenant in the property in question,

had set up its title in the property as thika tenant.

It had also started depositing thika rent with the controller. The right of the writ petitioner/appellant as that of a thika tenant in the property in question

has not yet been conclusively determined by the thika controller. Fact remains that the dealership agreement which was granted in favour of the

erstwhile dealer Mr. Sengupta (since deceased) under the writ petitioner/appellant has ceased to operate and a new dealer has been appointed for

running the petrol pump over the property in question by the writ petitioner /appellant. The newly appointed dealer could not receive possession of the

petrol pump due to alleged obstruction created by some miscreants.

Be that as it may, in 1993, a suit was filed by the original landlord against the writ petitioner/appellant for the recovery of possession but subsequently

the said suit was dismissed for default. The respondent no. 9 being the purchaser of the said property in question from the original owner, subsequently

filed a civil suit being Title Suit No. 12 of 2015 before the learned Civil Judge (Junior Division), 3rd Court at Alipore for declaration of his right, title

and interest in his suit property and also for perpetual injunction for restraining the writ petitioner/appellant, impleading it as defendant no. 9 therein,

from disturbing the private respondent’s possession over the suit property. The private respondent claimed that the petrol pump was not in

operation for a long time and the business was abandoned and the property in question was left uncared of. As such the private respondents took

possession thereof on 3rd January, 2015 and since then it has been continuously possessing the same.

Though it is true that the said private respondent failed to get protection from the court to protect its possession over the property in question as it

failed to establish its legal possession therein, but fact remains that the private respondent is still maintaining its possession over the said property even

without taking aid of the court’s order.

Even assuming that the writ petitioner/appellant had the legal right to recover and/or maintain and/or protect its possession over the disputed property,

still then, the manner in which it intended to get back its possession over the property in question by filing a writ petition by way of implementation of

an order passed by the learned Executive Magistrate in a proceeding under Section 144(2) of the Criminal Procedure Code, is not very much

appreciated by this court.

If the writ petitioner/appellant thinks that possession of the said property is with the appellant and it wants to protect its possession, the writ petitioner

could have sought for such relief by way of injunction in the suit pending before the learned Civil Judge (Junior Division) 3rd Court at Alipore;

otherwise, if the writ petitioner/appellant is of the view that it has been illegally dispossessed from the property in question by the respondent no. 9,

then the writ petitioner/appellant could have approached the very same civil court where the suit is pending for recovery of its possession.

We are of the considered view that when a civil suit is pending between the same parties involving identical cause of action before the competent civil

court, the writ petition ought not to have been entertained at all by the writ court for avoiding multiplication of proceedings between the parties. That

apart, we also find here that the order passed by the learned Executive Court on 9th December, 2014 was stayed by the appellate forum on 5th

January, 2015. As such, the order passed by the Executive Magistrate on 9th December, 2014 was not in operation on the date when the writ petition

was affirmed i.e. on 16th January, 2015.

Since the operation of the order of the Executive Magistrate was stayed on the date on which the writ petition was moved and also further, since the

order passed by the learned Executive Magistrate had lost its force subsequently by efflux of time, we are of the view that the learned writ court did

not commit any illegality in rejecting this writ petition by the impugned order. We, thus, do not find any merit in this appeal. The appeal is devoid of any

merit of consideration. This appeal is, thus, dismissed. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates

for the parties upon compliance of all requisite formalities.