Jayanta Ghosh @ Bablu Ghosh and Others vs State of West Bengal and Others

Bhaskar Bhattacharya, J.—This mandamus-appeal is at the instance of the writ-petitioners and is directed against order dated July 6, 2007 passed by a learned Single Judge of this Court by which His Lordship disposed of a writ-application filed by the appellants while disposing of an application for vacating interim order passed earlier on 26th June, 2006. In the writ-application the appellants prayed for mandamus directing the respondent No. 5, the Secretary of Gankar Fisherman''s Co-operative Society Limited, to rescind or revoke the order dated 3rd June, 2006 with further direction upon the concerned respondent to allow the appellants to continue their work on the basis of the decision of the then Board of the Society dated 10th March, 2003 and 13th March, 2003 in respect of the fisheries, namely, Kharkari, situated at plot No. 83 of mouza-Bandh Khola under Police Station - Raghunathganj, District - Murshidabad.

The case made out by the appellants was that the Gankar Fishermen''s Co-operative Society Ltd., situated at village and post Gankar, was situated in a place 7 km away from the office of the Society and as such, the Members of the Board of the said Society by their resolution dated 10th March, 2003 appointed the appellants to look after the said fishery, namely, Kharkari, for the year 1410-1412 and the Society also had given authority to the appellants to continue the management of the said fishery after paying money towards the Gankar Fishermen''s Cooperative Society.

According to the appellants, they requested the Board of Members of the said Society to extend the said period and considering such prayer, the Secretary on behalf of the Society extended the said period by another one year, namely, till 31st March, 2007. Subsequently, by order dated 3rd June, 2006 the Society terminated the right of management of the appellants, which according to the appellants, was illegal.

After filing of the said writ-application, the appellants prayed for interim order when a learned Single Judge of this Court passed an interim order directing the parties to maintain status quo with regard to possession of the appellants in respect of the Jalkar in question till 15th July, 2006.

Thereafter, the respondent Nos. 8 and 9 filed two applications, one for adding them as parties to the proceedings and the other for vacating the interim order earlier granted and by the order impugned herein, the learned Single Judge was pleased to vacate the interim order passed earlier in the writ-application after adding those respondents as parties and at the same time, disposed of the writ-application.

Being dissatisfied, the writ-petitioners have come up with the present mandamus-appeal.

After hearing the learned counsel for the parties and after going through the materials on record, we find that the learned Single Judge dismissed the writ-application on the sole ground that the period for which settlement was given in respect of the fishery had already expired and as such, no purpose would be served by keeping the writ-application pending and consequently, His Lordship dismissed the writ-application.

However, on consideration of the materials on record, we find that the State Government granted lease of the fishery in favour of the respondent No. 5, a Fishermen Co-operative Society. The said Society in its turn gave the right of management of the fishery to the writ-petitioners. The grievance of the writ-petitioners is that the respondent No. 5 illegally withdrew the right of management and their prayer was for a direction upon the respondent No. 5 to restore such right.

Mr. Sanyal, the learned counsel appearing on behalf of the appellants strenuously contended before us that his clients had invested huge amount of money pursuant to the right conferred upon them and as such, the said right could not be arbitrarily withdrawn without giving any opportunity of hearing to his client and that too, by virtue of an illegal order.

It is now settled law that in order to maintain the writ-application, the writ-petitioner must show that he has a legal or fundamental right in his favour which has been infringed by the action or inaction of a "state" within the meaning of Article 12 of the Constitution of India. In the case before us, there is no allegation of the writ-petitioners against the State-respondents; on the other hand, their grievance is against the respondent No. 5, a Fishermen Co-operative Society Limited, which gave them, the power of management of the. fishery allotted in its favour. Therefore, it was a dispute between the writ-petitioners and the respondent No. 5. Such dispute cannot be resolved in a writ-application. If the writ-petitioners are of the view that for illegal action on the part of the respondent No. 5, they have suffered any loss, their remedy lies not by filing a writ-application.

We, thus, find that the writ-application should have been dismissed on the ground that the same was not maintainable at all and not on the ground as stated by the learned Single Judge in the order impugned.

We now propose to deal with the decision in the case of Company Bank, Bangalore Vs. Lalitha H. Holla and Others, Kant 133 cited by Mr. Sanyal.

In the said case, it was held that an irrevocable power of attorney does not create any interest in the property unless it is an agency coupled with interest. It is further held there that for creation of equitable interest of rent, the document requires registration. We fail to appreciate, how the said decision can be of any help to the appellants. The aforesaid proposition of law has been discussed in details by a Division Bench of this Court in the case of Vipin Bhimani and Another Vs. Sunanda Das and Another, in the following words:

"We are not impressed by the submission of Mr. Roy Chowdhury that a so-called irrevocable Power of Attorney cannot be revoked in any circumstances. By virtue of such Power of Attorney if an owner of the building gives agency to a person to act on his behalf, the contract by itself is determinable at any point of time. The concept of irrevocable Power of Attorney thereby conferring agency for all time to come is unknown in jurisprudence unless such power is coupled with an interest, meaning thereby, the conferment of power to do some act conveyed to an agent along with an interest in the subject-matter of the power. When such power coupled with an interest is given, the holder of such power does not hold the same for the benefit of the principal but for his own benefit and for the above reason, such authority is not recognised as true "Agency power" and is termed as "proprietary power". In the case before us, no such "proprietary power" has been given to the developer. Section 202 of the Contract Act recognises such proprietary power and as provided in Section 203 thereof, except in the cases covered by Section 202, all other agencies are revocable at the instance of the principal. After going through the Power of Attorney involved herein, we find that such agency was given only to give effect to the earlier agreement for development of the immoveable property which by itself does not create any interest over the property in view of the provisions contained in Section 54 of the Transfer of Property Act.

Therefore, by virtue of the so-called irrevocable Power of Attorney, ho interest over the immovable property had been created in favour of Mr. Roy Chowdhury''s client so as to prevent the principal from revoking the said Power of Attorney."

In the case before us, the power of attorney given by the respondent No. 5 in favour of the appellants does not create any interest in the property in favour of the appellants; moreover, whatever interests the respondent No. 5 received from the State had already come to an end. At any rate, the power of attorney executed in favour of the appellants did not invest the appellants to maintain a writ-application against the respondent No. 5.

We, consequently, uphold the ultimate conclusion of dismissal passed by the learned Single Judge but on the ground that the same was not maintainable. We make it clear that we have not gone into the merit of the dispute or as to the question whether the respondent No. 5 could lawfully transfer the right of management of the fishery in favour of the appellants. The mandamus-appeal accordingly, is, dismissed. In the facts and circumstances, there will be, however, no order as to costs.

I agree.

Rudrendra Nath Banerjee, J.