- (1.) THIS mandamus appeal is at the instance of unsuccessful writ petitioners and is directed against the order dated December 12, 2006 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ application on the ground that serious disputed questions of fact were involved therein which could not be effectively decided in the proceedings under Article 226 of the Constitution of India on the basis of affidavits.
(2.) THE writ petitioners, two in number, approached this Court under Article 226 of the Constitution of India thereby praying for the following relief: "a) To issue a writ of and/or writs in the nature of mandamus commanding the respondent No. 6 to act in accordance with the law and to quash and/or rescind the impugned notice issued on 2. 12. 02 being Annexure 'p-9' of this petition. b) To issue a writ of and/or writs in the nature of mandamus commanding the respondent No. 6 not to give any effect or further effect to the impugned notice being Annexure T-9' of this petitioner issued by him on 2. 12. 02. c) To issue a writ of in the nature of mandamus commanding the respondent nos. 6, 9 and 10 to give the petitioner all sort of assistance including the financial help for repairing the said rooms and carrying their business in the aforesaid rooms. d) To issue a writ of in the nature of mandamus commanding the respondent nos. 6, 9 and 10 to return all the articles lying in the petitioners' shop-room which were looted at the time of demolishing the petitioners' said shop on the basis of the notice dated 2. 12. 02 issued by the respondent No. 6 being annexure 'p-7' of this petition. e) To issue a writ of in the nature of prohibition, restraining the respondent no. 6 and respondent Nos. 9 and 10 and their men and agents from further demolishing the petitioners said tenanted shop-rooms. f) To issue a writ of or in the nature of certiorari by calling upon the respondents to transmit and certify the records of the proceeding before the learned Registrar, Appellate side of this Hon'ble Court so that conscionable justice may be done by quashing the same. g) To issue rule NISI in terms of Prayers (a), (b), (c), (d), (e), (f) and 2 (g)above and if the respondents failed to show cause or sufficient cause, to make the rule absolute; h) To pass an order of injunction restraining the respondents particularly the respondent Nos. 5, 9 and 10 from further demolishing the petitioners said shop-rooms by staying the operation mentioned the notice dated 2. 12. 02 issued by the respondent No. 6 being Annexure 'p-9' to this petition. i) To pass an ad interim order in terms of prayers (e) (d) and (i) supra till the disposal of the writ application. j) To pass an ad interim order directing the respondent Nos. 6, 9 and 10 to return all the articles which were removed at the time of demolition of the petitioners' shop-rooms and restraining their from further remain of the Articles of the said business. k) To pass an ad interim order directing the respondents authorities to restore the possession of the said shop-rooms until disposal of this application. 1) To pass such further or other order or orders and/or direction or directions as to your Lordships may deem fit and proper. m) Costs and incidental to this applications be paid by the respondents. "
(3.) THE case made out by the writ petitioners may be precised thus: (i) The writ petitioner No. 1 was a tenant in respect of two rooms and the writ petitioner No. 2 was also a tenant in respect of other two rooms situated at the crossing of Mathurapur Station Road and rajapur Road onmouza Uttar Durgapur, plot No. 168 (R. S.) Khatian no. 318, within the jurisdiction of the Mathurapur Police Station under the landlords, namely, Radha Kanta Chowdhury, Sudhansu kumar Chowdhury and Saroj Kumar Chowdhury. (ii) Originally, the said property belonged to one Hrishikesh Banerjee and at that point of time, the plot number of the said land was 168 and the Khatian No. 318 under Uttar Durgapur Mouza and the said hrishikesh Banerjee constructed several rooms on the said plot for commercial purposes. (iii) Hrishikesh Banerjee sold the property to Radha Kanta Chowdhury, sudhansu Kumar Chowdhury and Saroj Kumar Chowdhury by a registered deed of sale dated June 20, 1952 and from the said date, the aforesaid three persons became the absolute owners of the plot along with rooms situated on the said plot and their names were recorded in the R. S. record-of-rights. (iv) The father of the writ petitioner No. 1 had taken two rooms from radha Kanta Chowdhury and his two brothers as tenant in the year 1960 for carrying on business and since then the father of the writ petitioner No. 1 had been occupying the said rooms and carrying on his business by paying rent till his death. After the demise of father of the writ petitioner No. 1, he had been carrying on his business in those rooms with the consent of the previous landlords. (v) The writ petitioner No. 2 had similarly taken the other two rooms from Radha Kanta Chowdhury and his brothers as a tenant in the year 1970 for carrying on business of readymade garments and he took his trade licence for his business carried on in those rooms and since then he had been occupying the rooms by regularly paying rent to the landlords. (vi) Radha Kanta Chowdhury previously issued written rent receipt to the father of the writ petitioner No. 1 and to the writ petitioner No. 2 for payment of rent but from the year 1999, he refused to issue the rent receipts and thereafter, the writ petitioner No. 2 and the father of the writ petitioner No. 1 had been paying rent by money order and those rents were accepted; but from the year previous to the presentation of the writ application, he refused to accept the rent through money order. But in spite of the refusal, the writ petitioners had been regularly sending rent through money orders. (vii) On 14th December, 2002, at about 11. 00 p. m. when the petitioners went back to their houses after closing the shop-rooms, some anti-social persons attacked their tenanted rooms with deadly weapons and after breaking the padlocks of those rooms, they entered therein and robbed all articles of their shop-rooms and removed boxes containing cash, rent receipts, licenses and different valuable documents and demolished part of the wall and roof of those rooms and also the door, window and Almirah etc. (viii) At the time of such misdeed, the writ petitioners informed the mathurapur Police Station over telephone but the officers of mathurapur Police Station came after two hours and arrested five persons but could not recover any of the articles, which were robbed. Those accused persons in course of two hours partly demolished those rooms and removed all articles and all valuable things. When the petitioners were going to the Mathurapur Police Station for lodging their complaint, they saw that all the arrested persons were released from the said police station. (ix) Due to inaction on the part of the Officer-in-Charge of Mathurapur police Station, the respondent No. 8, in spite of lodging written complaints, the writ petitioners made application before the Sub-Divisional Police Officer, Diamond Harbour and the Sub-Divisional officer, Diamond Harbour on 19th December, 2002. Again, on 21st december, 2002 the writ petitioners lodged a complaint before mathurapur Police Station praying for necessary police help and for taking action against the anti-social persons on the basis of their complaint earlier made. (x) Being dissatisfied with the inaction on the part of officers of the mathurapur Police Station, the writ petitioners, in the past, moved an application under Article 226 of the Constitution of India before this Court being W. P. No. 1732 (W) of 2002 and by order dated december 24, 2002 Maharaj Sinha, J. passed an interim order in terms of prayer (e) of the writ application for a period of five weeks from the date of passing of the order in the presence of the learned advocate appearing on behalf of the respondents and His Lordship directed the Officer-in-Charge Mathurapur Police Station to see that peace and tranquillity were maintained in respect of the property. The said order dated 24th December, 2002 was communicated to the officer-in-charge, Mathurapur Police Station and on 26th December, 2002, the same was communicated to the S. D. O. , Diamond Harbour but in spite of such order, the rooms were again demolished with full knowledge of the said order. The Officer-in-Charge, Mathurapur police Station did not take any step. Subsequently, the interim order was further extended by order dated 20th February, 2003. (xi) In the said writ application, the respondent Nos. 9 and 10 filed an application being CAN No. 558 of 2003 for addition of party on the allegation that they had purchased the property from Radha Kanta chowdhury and other owners and that the Pradhan of Debipur Gram panchayat, the respondent No. 6, served a notice upon the respondent no. 9 to meet him for discussion about the condition of the premises of the shop-rooms and subsequently, the shop-rooms were demolished pursuant to the direction of the Panchayat Pradhan. (xii) After receiving the copy of the said application, the writ petitioners made application before the respondent No. 7, the Upa-Pradhan of gram Panchayat for repairing the shop-room, and for giving permission for carrying on their business as a tenant in the shop-rooms and also requested him for return of all the articles which were removed at the time of demolition of those rooms. The writ petitioners, on 22nd March, 2003, also requested the respondent Nos. 9 and 10 for repairing of the shop-rooms and for returning the articles which were removed at the time of demolition. (xiii) On April 11, 2003, the respondent Nos. 9 and 10 along with some anti-social persons again demolished the rest portion of the building on the basis of notice dated 2nd December, 2002 which was issued by the Pradhan of Debipur Gram Panchayat. (xiv) Therefore, the respondent Nos. 9 and 10 with the help of the local panchayat Authority illegally demolished the tenanted accommodation of the writ petitioners, although, the writ petitioners could not be evicted from the property except by due process of law. ;