The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(C) No.2140 of 2012 ... Deba Prasad Chakraborty & Ors. … Petitioners [In W.P. (C) No. 2140 of 2012] -V e r s u s- The State of Jharkhand & Others .... Respondents [In W.P. (C) No. 2140 of 2012]. ... For the Petitioners : - M/s. Joydeep Sen, Rajarshi Chatterjee, Dhananjay Banerjee, Piyush Chitresh and Vishal Singh, Advocates. For the Respondents: - M/s. Mahesh Tiwari, S. N. Das and Niranjan Singh, J.C. to S.C. (L&C), Advocates. with M.A No. 35 of 2012 Zila Parishad, Dhanbad & Anr. … ... Appellants [In M.A No. 35 of 2012] -V e r s u s- Deba Prasad Chakraborty & Ors. … Respondents [In M.A No. 35 of 2012] … CORAM: - HON’BLE MR. JUSTICE P.P. BHATT. … For the Appellants : - M/s. Mahesh Tiwari, S. N. Das and Niranjan Singh, Advocates. For the Respondents: - M/s. Joydeep Sen, Rajarshi Chatterjee, Dhananjay Banerjee, Piyush Chitresh and Vishal Singh, Advocates. … C.A.V. On : - 14.06.2013 Delivered On : - 31/08/2013 ... 34/31.08.2013 The petitioners by way of a writ petition being W.P.C. No. -2140 of 2012 under Art. 227 of the Constitution of India have prayed for issuance of appropriate writ/order quashing and setting aside the order dated 13.01.2012 passed by the Learned Civil Judge (Senior Division) 5th Dhanbad in T.S. No. - 72 /06 whereby the Leaned Court below dismissed the application of the plaintiff under Order 39 Rule 1 and 2 r/w Section 151 of the Code of Civil Proceedure. 2. Miscellaneous Appeal being M.A. No. - 35 of 2012 filed by the Appellant (original defendant) for expunging some part of the order dated 13.01.2012 on the ground that while disposing of the application under Order 39 rule 1 and 2 r/w Section 151 of the Code of Civil Procedure arrived at various conclusive findings which are not the prima
Legal Reasoning
facie finding and will highly prejudice the defendant. 3. Both the matters are arising out of a common order and involved similar question of law hence they are being decided by this common order. 4. Heard counsel for the parties at length and perused the record of the case. 5. The brief facts giving rise to the present petitions are that in the year 1933 Manbhum District Board auctioned a plot identified as D.B. Plot No.1 within C.S Plot No.266 and One Hari Shankar Worah and his associates through benamdar namely Prabhu Lal Pran Jiwan Pathak bid for the same. By registered deed of settlement being Deed No. 1755 dt. 16-04-1934 for salami of Rs. 5000/- Manbhum District Board settled the land in favour of Prabhu Lal Pran Jiwan Pathak. After the death of Prabhu Lal Pran Jiwan Pathak, his legal heirs executed a deed of disclaimer of title in respect of the said land and declared Hari Shankar Worah, Kripa Shankar Worah and Norbhe Ram G. Chanchani as owner of the said plot. In the year 1949, Hari Shankar Worah settled the 2 land in Trust and he became the trustee and empowered to alienate and/or dispose of the said land. Hari Shankar Worah conveyed the property to M/S Hari Shankar Worah Pvt. Ltd. by a registered sale deed in the year 1963 and accordingly possession also delivered to the said company. M/S Hari Shankar Worah (Properties) Pvt. Ltd. thereafter incorporated as H.W. Builders Ltd. Thereafter H.W. Builders Ltd. vide several registered deeds of sale dt. 24-04-1998 sold the land to the petitioners and the petitioners constructed a commercial complex after sanctioning the plan form the Mineral Area Development Authority (MADA). 6. Dispute arose in the year 2005 when the petitioner received a notice by the Deputy Commissioner cum Chief Officer, Zila Parishad, Dhanbad under reference no. 839 dt. 31-08-2005 by which the petitioner was directed to remove the encroachment upon the said plot within 15 days of the receipt of the notice. Petitioner challenged the aforesaid notice by filling writ petitions being W.P.(C) No. 5244 of 2005 and W.P.(C)
Decision
No. 5918 of 2005 and the said Writ petitions were disposed of by observing that the disputed question of fact cannot be decided in Writ jurisdiction and the petitioner may move before the Civil Court of competent jurisdiction. Being aggrieved by the said order, the petitioner preferred L.P.A No. 185 of 2006, in which the appellants were asked to file civil suit. Accordingly, the petitioners preferred a Title Suit being T.S. No. 72 of 2006 for declaration of the title of the petitioner in the said plot. During the pendency of the suit the Circle officer, Dhanbad started a proceeding under The BPLE Act vide Encroachment Case no. 01/2006-2007 and issued notice to the petitioner under Sec. – 3 of the Act for removal of the encroachment. The petitioner appeared in the said case and represented about pendency of the suit and considering the said fact the proceeding stayed by the authority. Another proceeding under BPLE Act was instituted being Encroachment Case 12 (iii)/08-09 and again the petitioner was directed to appear and show the document relating to the title of the petitioner upon the said land. The petitioner challenged the said notice by preferring writ petitions being W.P.(C) No. 1657 of 2011 and W.P.(C) No. 1686 of 2011 but subsequently the said writ petitions were withdrawn. By a public notice published in local newspaper “Prabhat Khabar” the petitioner and their co-sharers were directed to vacate the premises within 24 hours. The petitioner alongwith the other co- owners made representation against the said notice before the Deputy Development Commissioner cum Chief Executive of Dhanbad Zila Parishad, Estate Officer and the District Engineer but inspite of that the shop owners and occupier of the building ousted from the building. Against the said action, a Writ petition being W.P.(C) No. 1932 of 2011 filed and the same was heard along with W.P.(C) No. 2687 of 2011 and W.P.(C) No. 2688 of 2011 and all the aforesaid writ petition were dismissed by the Hon’ble High Court and against the dismissal order an L.P.A No. 269 of 2011 was filed in which the Hon’ble Division Bench directed the petitioner to prefer an injunction petition before the lower court on the ground of subsequent development. 3 7. Accordingly the petitioner preferred an application under Order 39 Rule 1 & 2 read with Section 151 of C.P.C. in the T.S. No. 72 of 2006 before the learned lower court and the court below by an order dt. 13-01-2012 dismissed the injunction petition by assigning reason that no irreparable injury will cause to the petitioner even if it is found that prima facie case and balance of convenience is in favour of the petitioner. 8. The learned counsel for the petitioner while referring the order passed by the learned court below submitted that : - (i) Admittedly, the respondents sealed the suit property during pendency of the instant suit, (ii) The petitioners were in the possession of the suit property before sealing of the same by the Dhanbad Zila Parishad, (iii) The sealing of the suit property by the respondents during the pendency of the title suit is illegal, (iv) In order of the Hon’ble High court of Jharkhand it has been directed that in sub-judice matters the occupants should be removed and the State Govt. or the Zila Parishad can take possession of such property where lis in pending, (v) The respondents have with mala fide intent wrongly sealed the property of the petitioners under the garb of the order passed by the Hon’ble High Court of Jharkhand in the public interest litigation, (vi) The respondents had no authority to nullify the settlement made in respect of the suit land and only the competent court could nullify the said settlement, (vii) The actions of the respondents in sealing the suit property is thoroughly unconstitutional and illegal, (viii) The respondents have admitted the possession of the petitioners over the suit property and that the petitioner had prima facie case, (ix) The petitioners have constructed a commercial complex on the suit land in accordance with law and due to dispossession from the said suit property, the petitioner have suffered loss and inconvenience and the balance of convenience lies in favour of the petitioners, (x) The petitioners have suffered irreparable loss due to the dispossession from the suit property. It is further submitted that in spite of the aforesaid finding recorded in the order, the learned court below opined that no irreparable loss will cause to the petitioner and on this ground alone dismissed the injunction petition hence the leaned court below has not exercised the jurisdiction properly. It is further submitted by the learned counsel for the petitioner that the learned court below by holding that the petitioner will not suffer irreparable losses and injuries, 4 totally ignored the materials on record that due to the sealing of the suit property the income of the petitioner totally stopped and they are also unable to repay the huge loan of the banks which is pressing hard for the payment and may initiate recovery proceeding at any time. The learned counsel for the petitioner also relied upon a judgment reported in (2010) 2 SCC 77, Narendra Kante Vs. Anuradha Kante wherein it is held that deprivation of enjoyment of one’s own property till disposal of suit itself constitute irreparable loss and injury. It is further submitted by the learned counsel for the petitioner that under section 151 of C.P.C the courts are very well within jurisdiction to restore possession pendent lite and to direct status quo as on the date of the institution of the suit although the petition has been filed under Order 39 rule 1 & 2. To support the above submission the learned counsel for the petitioner referred to the following judgements:- (i) AIR 1975 Cal 377, Ravindra Nath Vs. Jyoti Prakash, wherein it is held that even if an injunction order was passed purportedly under O.39 Rule 1 & 2 of C.P.C. though circumstance contemplate under O.39 Rule 1 & 2 did not exist such order of injunction cannot be said to be a nullity, in as much as the court had jurisdiction to pass such order of injunction U/S 151 of the C.P.C. (ii) (2008) 4 SCC 791. Tanushree Basu Vs. Ishani Prasad Basu, wherein it is held that if a party takes recourse to any contrivance to dispossess another during pendency of suits either in violation of the order of injunction or otherwise, the court undisputedly will have jurisdiction to restore the parties back to the same position. (iii) AIR 1975 Goa 23, Shrirang Padmanabh Vs. Mariano Fransisco, wherein it is held that the power is not covered by Order 39 of the C.P.C, but the power is considered to be inherent to be exercised for the ends of justice under section 151 of C.P.C The learned counsel for the petitioner also argued about the maintainability of appeal filed by the respondents on the ground that an order passed in exercise of power U/S 151 of C.P.C. are not appealable. He also placed reliance of some judgments in support of his submission.