Calcutta High Court (Appellete Side)

Md. Sariful Mondal vs The State Of West Of West Bengal And ... on 8 December, 2022

December 8, 2022
Sl. No.2
Court No.1
s.biswas
                                       MAT 1838 of 2022
                                            With
                                        CAN 1 of 2022

                                       Md. Sariful Mondal
                                               vs.
                          The State of West of West Bengal and others

                    Mr. Mohinoor Rahaman,
                    Ms. Maria Rahaman,
                    Ms. Iqra Rahaman, Advocates
                                                          ... for the appellant
                    Mr. Himadri Sekhar Chakraborty,
                    Mr. Dipankar Ghosh, Advocates
                                                          ... for the State
                    Mr. Mahamudul Hassan, Advocate
                                         ... for the respondent Nos.7 & 15

Mr. Manas Kumar Das, Advocate

This intra-court appeal is at the instance of the

writ petitioner challenging the order of the learned

Single Judge dated 21st November, 2022 dismissing

the WPA 23230 of 2022.

The appellant had approached the writ court

with the plea that he is the legal heir of the original

owner of the land in question on which the

respondents were raising construction of a mosque.

Hence the prayer was made to issue a direction to

the official respondents especially the District

Magistrate and Collector, North 24 Parganas to take

immediate action for demolishing the construction of

mosque raised on the land in question.

Learned Single Judge has taken note of the

pending suit and the order passed therein on the

application for temporary injunction and thereafter

has refused to interfere in the matter.

MAT 1838 of 2022

Submission of learned counsel for the appellant

is that under Section 5 of the West Bengal Religious

Buildings and Places Act, 1985, the permission is

required for construction of public religious building

and in terms of Section 9 of the Act, jurisdiction of

the Civil Court is barred. His further submission is

that learned Single Judge ought to have entertained

the petition and granted relief as prayed therein.

Learned counsel for the respondents have

opposed the appeal. Submission of learned counsel

for the respondent Nos.7 and 15 is that the

temporary injunction has already been refused by

the trial court and that after an agreement with the

appellant, the construction of the mosque has been

started, therefore at this stage no interference is

required.

Learned counsel for the other private

respondents has also opposed the appeal.

Learned counsel for the State has submitted

that the mosque was constructed in the year 2019

and there is no construction going on at this stage.

We have heard the learned counsel for the

parties and perused the record. Undisputedly one of

the appellant has filed Title Suit No.122 of 2018. In

that suit ad-interim temporary injunction was

granted by the trial court on 18.05.2018 by directing

the parties to maintain status quo with regard to

possession of suit property and also restraining them

MAT 1838 of 2022

from changing the nature and character of the said

land, thereafter the parties were heard by the trial

court on the application for temporary injunction on

22nd September, 2022. The trial court on 22nd

September, 2022 had declined the prayer for

temporary injunction by taking note of the report of

the Commissioner dated 25.02.2019 disclosing that

the mosque on the suit property is surrounded by

fencing. The trial court had also taken note of the

agreement dated 24.02.2018 between the plaintiff

and the concerned defendants, granting permission

to erect mosque on the land in question. The trial

court, while rejecting the application for temporary

injunction, has reached to the conclusion that if the

defendants are restrained from making any further

construction, they will suffer irreparable loss and

injury.

It is undisputed that against this order of the

trial court, an appeal has been preferred which is

pending for consideration. Hence, the issue which

the appellant is raising in this appeal can be raised

in the pending appeal against the order of rejection

of the temporary injunction.

That apart, it is also noticed that the petitioner

by way of writ petition has raised the private dispute

with the respondents, which is not permissible in

view of the judgment of the Hon'ble Supreme Court

in the matter of Radhey Shyam vs. Chhabi Nath

MAT 1838 of 2022

reported in (2009) 5 SCC 616 where the following

decision in this regard has been held:

"9. From the aforesaid narration of events, it is clear that the proceedings in this case arose out of purely civil disputes relating to property and the parties have filed suits before the civil court, and the suits are pending. The parties to the proceedings are all private individuals. Neither the State nor "State" nor an authority under Article 12 is a party to this proceeding. This is clear from the cause-title of this appeal. Now the question is: whether private individuals are amenable to the jurisdiction of writ court in connection with the private disputes relating to property, possession and title between private individuals?

10. As early as in 1957, a Constitution Bench of this Court in Sohan Lal v. Union of India held that a writ of mandamus or an order in the nature of mandamus is not to be made against a private individual. A writ of and/or in the nature of mandamus normally is issued asking a person to do a particular thing which is in the nature of his public duty.

11. In Sohan Lal rival claims of property were in issue and the learned Judges held in para 5 that the writ courts should refrain themselves from entering the said field. Since in view of the Court such an exercise calls for "entering into a field of investigation which is more appropriate for a civil court in a properly constituted suit to do rather than for a court exercising the prerogative of issuing writs" (emphasis supplied) (see AIR p. 531, para 5).

The learned Judges held that if only it can be proved that the appellant Sohan Lal acted in collusion with Union of India in evicting the respondent Jagan Nath, then an order of mandamus can be issued (see Sohan Lal case , AIR p. 532, para 7), but it will not issue otherwise.

12. Only in the case of a writ of habeas corpus, can it be issued against a private individual, if it is proved that the private

MAT 1838 of 2022

individual is illegally holding another person in detention (see Mohd. Ikram Hussain v. State of U.P.).

13. Following the aforesaid principle, this Court fails to understand how can the writ court intervene in a dispute over property rights between private individuals.

14. Apart from the decision in Sohan Lal, subsequently in Mohd. Hanif v. State of Assam a three-Judge Bench of this Court explaining the general principle relating to the High Court's jurisdiction under Article 226 held that the jurisdiction of the High Court is extraordinary in nature and is vested in the High Court not for the purpose of declaring the private rights of the parties but it is conferred for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of the jurisdiction (see SCC p. 786, para 5).

15. The learned Judges in Hanif case reiterated the principle further by saying: (SCC p. 786, para 5) "5. ... In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction."

16. The learned Judges in Hanif referred to the decision of this Court in T.C. Basappa v. T. Nagappa and held that: (Hanif case, SCC p. 786, para 5) "5. ... It is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law."