Moynul Hoque Alias Moynul Hoque Chowdhury vs The State of West Bengal and Others

Arun Kumar Dutta, J.—The petitioner, C.M.C. respondents and the Respondents Nos. 14 and 17 are represented by their respective Learned Advocates, who have been heard at length on the question of maintainability of the instant Writ Application. By this Writ Application under Article 226 of the Constitution of India the Writ Petitioner (hereinafter referred to a petitioner) has prayed the Court for a declaration that the Building Plan, being B.P. No. 17 (B -15) dated 7.9.94, and any other revised Plan thereto is bad, illegal and inoperative as also praying for issue of a writ in the nature of mandamus commanding the Respondents Nos. 1 to 10 not to allow the Respondents No. 12 to 19 and their men and their men and agents to make any construction or further constructian on plot No. 278 Khaitan No. 132 sheet No. 60, Mouza Garden reach, P.S. Metiabruz, Calcutta - 18 pursuant to the said building plan No. 17 (B-15) dated 7th September, 1994", further commanding them (Respodts. No. 1 - 10) to act in accordance with law, along with other reliefs prayed for therein for the reasons stated and on the grounds made out therein.

The Petitioner claims his right, title and interest in the (sic) Plot No. 278 on the basis of an Agreement for sale entered into by and between himself and the Bengal Bus Syndicate in the year 1969. He was put in possession of the said plot in pursuance of the said Agreement. He had subsequently filed a Suit for Specific Performance of Contract in the 3rd Court of the Assistant District Judge of 24-Parganas at Alipore, being Title Suit No. 12 of 1993. The Application for temporary injunction filed by him in the said Suit, his prayer for interim injunction having been rejected, he had preferred Appeal there against before the District Judge of 24-parganas, who by his Order dated 21/9/95 had directed the parties therein to maintain Status quo till the disposal of the application for temporary injunction filed by him, with a further direction upon the Trial Court to dispose of the Petitioner''s application for temporary injunction expeditiously. On an Application filed by him before an Executive Magistrate u/s 144, Cr. P.C., the Learned Magistrate by an Order dated 12.6.95 had as well directed the Parties to maintain Status quo in respect of the disputed property. The Order of the Learned Magistrate has lost its force by efflux of time.

As against the Petitioner''s claim for right, title and interest in and possession of the aforesaid disputed plot, the Respondent No. 12 Nazimuddin Laskar as well appears to have claimed right, title and interest in the disputed plot contending that the same belonged to his grandfathers The said plot was granted under lease to the Bengal Bus Syndicate, and the said lessee had surrendered the Lease on 27.1.1968. He further had sought to contend that his name has been mutated in the office of the State of West Bengal and his application for grant of sanction of Plan for construction of Building on the said Plot has also been passed.

Having regard to the averments made in the Writ Application and the facts and circumstances of the matter there could be little denying that the disputed question of fact regarding, title to and possession of the disputed plot is involved in the Writ Application. There is a rival claim in respect thereof between the contending parties. The Petitioner appears to have filed a Suit for Specific Performance of Contract before the competent Civil Court which has not been disposed of as yet. His alleged title to and possession of the disputed plot has not been decided by the competent Civil Court. It is not for the Criminal Court to decide the question of title to and possession of the disputed property either. The private dispute between the contending parties as regards title to and possession of the disputed plot still stands. The Writ Court cannot certainly entertain a dispute of private nature and can neither be called upon to decide the disputed question of title to and possession of the disputed plot. A private dispute, undeniably, would fall outside the scope of the Court''s jurisdiction under Article 226 of the Constitution of India. As held by the Supreme Court in the decision reported in AIR 1993 Supreme Court 1225 the Writ Court will not exercise its jurisdiction over a private dispute. This Court had also held so in, the decision in Bistupada Khar v. State of West Bengal & Ors, 1995(1) C.L.J. 297, following the aforesaid decision of the Supreme Court.

Upon hearing the submissions of the Learned Advocates for both sides and perusal of the Writ Application and the materials on record, there could be little mistaking that it is essentially a dispute of Civil nature. The Petitioner has sought for Declaration, along with prayers for consequential reliefs by way of permanent injunction and mandatory injunction, the way the prayers have been framed in the prayer portion of the Writ application. The Writ application, such as it is, clearly appears to have been filed by way of camouflage, and is clearly a misconceived one, which is not at all maintainable as such.

Since the Petitioner has, admittedly, filed a Suit for Specific Performance of Contract before the competent Civil Court, being Title Suit No. 12 of 1993 before the 3rd Court of Assistant District Judge of 24-Parganas at Alipore, it was open to him to seek, appropriate reliefs therein by impleading all necessary parties therein for a fair, final and effective adjudication of the dispute regarding title to and possession of the disputed property, as rivally claimed by the contending parties, once for all. The Petitioner could as well have taken steps for filing a properly framed Suit before the competent Civil Court by impleading all necessary parties therein praying for appropriate reliefs for the aforesaid purpose according to law, if the aforesaid Suit filed by him did not serve the purpose, if so advised, instead of exercising this court by this instant frivolous and misconcieved Writ Application. In the premises above, the instant Writ Application could not clearly be entertained, not being maintainable in law. The same be accordingly rejected with cost, to be paid by the petitioner to the contending Respondents. Hearing fee is assessed at Rs. 1000/- only.