Durgachak vs The Chief Executive Officer
2022 Latest Caselaw 4671 Cal

            IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                            (Appellate Side)

                          F.M.A 863 of 2022
                                  With
                       I.A. No. C.A.N. 1 of 2022

     Secretary, Shibam Charitable Dharmasala, Khanjanchak,
               Durgachak, Haldia, Purba Medinipur

                                    vs.

The Chief Executive Officer, Haldia Development Authority &
                             Ors.

Before: The Hon'ble Justice Arijit Banerjee
                     &
          The Hon'ble Justice Rai Chattopadhyay

For the Appellants                  : Mr. Bijoy Adhikary, Adv.
                                      Mr. Ushananda Jana, Adv.
                                      Ms. Susmita Adhikary, Adv.

For the Respondent Nos. 1&2         : Mr. Sk. Afrojul Haque, Adv.

For the State                        : Ms. Sutapa Sanyal, Adv.
                                       Ms. Susnita Saha, Adv.

Heard On                             : 20.07.2022

CAV On                               : 20.07.2022

Judgment On                          : 22.07.2022

The Court :

1. This appeal is directed against an order dated June 20, 2022, whereby

the appellant's writ petition being W.P.A 15974 of 2021 was dismissed by

the learned Single Judge.

2. At the outset we may record that although the private respondents did

not appear, we did not deem it necessary to adjourn the matter since we

have not called upon the respondents to make submission.

3. The appellant claims to be a society registered under the Societies

Registration Act, 1961. It says that its main object is doing good for the

people by running Schools, Libraries, Charitable Dispensaries, Nursing

Homes for poor, etc.

4. Learned Advocate for the appellants submitted that the Haldia

Development Authority (in short, 'HDA'), allotted a plot of land to the

appellant for being utilised by it for charitable purposes. However, the

private respondents were occupying such land as encroachers. They had

made construction on the land of HDA and were residing therein. In view of

the failure of HDA to handover vacant possession of the plot allotted to the

appellant, the appellant approach the learned Single Judge praying for a

direction on HDA to forthwith makeover vacant peaceful possession of the

concerned plot to the appellant free from encroachment. Initially the private

respondents were not parties to the writ petition. Subsequently in terms of

an order dated March 22, 2022 passed by the learned Single Judge, the

respondent nos. 3 to 14 were impleaded as parties.

5. Before the learned Judge it was submitted on behalf of the private

respondents that they have filed a suit being Title Suit no. 95 of 2008

against HDA and the appellant herein, praying for declaration of their right,

title and interest in respect of the concerned plot. Such suit is pending. HDA

submitted that it is not in a position to deliver possession of the concerned

land to the writ petitioner until disposal of the suit. In view of pendency of

the suit, the learned Judge disposed of the writ petition with a request to the

learned Trial Court to dispose of the tile suit pending before it as

expeditiously as the business of the Court may permit. Being aggrieved the

writ petitioner is before us by way of this appeal.

6. Appearing for the appellant, Mr. Bijoy Adhikari, learned Senior

Counsel vociferously argued that the private respondents do not have an

iota of right, title or interest in respect of the plot in question. It is admitted

by them that they are not the owners of the land. The title suit is pending

since 2008. Already 14 years have gone by. Nobody can say when the suit

will reach its logical conclusion. The appellant is being deprived of the user

of the land and is thereby prevented from carrying on highly laudable

charitable activities for the benefit of the members of the public at large. He

submitted that the writ Court, in the facts and circumstances of this case

has sufficient power to do justice by directing HDA to put the appellant in

possession of the concerned land after removing the encroachers therefrom.

7. We may have full sympathy for Mr. Adhikary's client but we are

unable to grant any relief to the appellant. Good, bad, indifferent, a suit has

been filed by the private respondents claiming declaration of title in a

competent Civil Court. This is not in dispute. Nor is it in dispute that HDA

and the appellant herein are defendants in that suit. Whether or not the

private respondents herein have any right, title or interest in respect of the

concerned land or otherwise entitled to be in occupation thereof, is an issue

pending before a competent Civil Court. We cannot pre-empt such suit by

passing any order which may have an impact on that suit. There would be

factual disputes between the parties which can only be resolved in the suit.

The Writ Court is not a proper forum for resolution of such disputes.

8. Mr. Adhikary is correct in saying that the private encroachers have

admitted that they are not owners of the land in question. In this connection

learned Counsel has relied on the decision of the Hon'ble Supreme Court,

dated September 26, 2006, rendered in Steel Authority of India Ltd. v.

Union of India & Ors., Appeal (Civil) 4263 of 2006 in support of the

proposition that the effect of an admission in the context of Section 58 of the

Indian Evidence Act is that admissions by themselves can be made the

foundations of the rights of the parties and admissions in the pleadings are

admissible proprio vigore against the maker thereof. Indeed, there can be no

quarrel with this proposition of law. However, even if the private respondents

are not owners of the land, this does not necessarily mean that they cannot

have any other kind of right, title or interest in respect of the land. The Civil

Court is in seisin of that issue. The learned Single Judge, in our considered

view, was absolutely right in not entertaining the writ petition. We find no

infirmity in the order under appeal. The same is affirmed. The appeal and

the connected application are accordingly dismissed without however any

order as to costs.

9. However, we modify the order under appeal to the extent that we

request the learned Trial Court to dispose of the title suit pending before it

within one year from the date of a copy of this order being placed before it,

keeping in view that the suit is pending for the last 14 years.

10. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(RAI CHATTOPADHYAY, J.)                              (ARIJIT BANERJEE, J.)