Monika Sen vs Salil Kumar Mitteft

Bhagabati Prasad Banerjee, J.—This is an application for certain direction and for vacating and modifying the order passed by the Division Bench of this Court presided over by Suhas Chandra Sen J. (as His Lordship then was) dated August 17, 1993, and also an injunction restraining the Respondents from giving any effect or further effect to the proceeding of Agenda No. 4 of the meeting dated April 26, 1994, and also an injunction restraining the Respondents from interfering with the functioning of Pre-primary and English Medium School of Sir Romesh Mitter Girls'' School which are at premises Nos. 15 and 19, Jogesh Mitter Road, Calcutta-700025, and also direction upon the Respondents not to create any disturbances at the time of admission in Pre-primary and English Medium School during the new session.

This application was filed by Salil Kumar Mitter, Sudhir Kumar Dey Mallick and Arijit Mitter, the trustees of Sir Romesh Mitter Girls'' School.

This case has a cheque career. But it is not necessary to set out the history of the case inasmuch as Their Lordship, the Hon''ble Dipak Kumar Sen J. and the Hon''ble Ajit Kumar Sengupta J. (as Their Lordships then were) by an order dated June 6, 1985, disposed of an appeal in Matter No. 114 of 1985 (Smt. M. Chakraborty and Ors. v. The West Bengal Board of Secondary Education and Ors.). In the said order Their Lordships, inter alia, recorded as follows:

Learned Counsel for the School states on instruction that the English. Medium School presently being run in a part of the premises of the School, will be shifted to premises No. 11 A, Jogesh Chandra Mitter Road as soon as the same is ready for use and that every endeavour will be made and expeditious steps taken in'' that behalf. It was further stated that the funds meant or allotted or allotted through the School are not being and will not be directed for any other purpose or for the English Medium School.

Thereafter, by an order dated May 3, 1989, the District Inspector of Schools passed the following order:

It was ordered by the Hon''ble High Court dated 6.6.85 to shift the then English Medium School which was sheltered in the building of Sir Romesh Mitter Girls'' School. The undersigned requests her to let the office know whether the shifting of the said school has been completed in compliance with the, Hon''ble Court''s order.

Further, the undersigned has to reiterate that in this school building no school or educational institution of any type other than the recognised secondary and primary ones will be allowed to function without obtaining necessary permission from the competent authority. If it is done, she will be held personally responsible for any future complications, legal or otherwise.

The said order dated May 3, 1989, was challenged by filing a writ application by Salil Kumar Mitter and others and the said writ application was disposed of by Dilip Kumar Basu J. on August 3, 1993, quashing the said order dated May 3, 1989, and directing the District Inspector of Schools to reconsider the matter after giving reasonable opportunity to the necessary parties. The appeal in question is against the order passed by Dilip Kumar Basu J. on August 3, 1993, and in-this appeal an order was passed to the extent that no admission of new students to any of the classes of the English Medium School or Pre-primary school shall be made.

The land in question on which construction was to be made is still lying vacant and the learned Counsel appearing on behalf of the Members of the Managing Committee states on instruction that his clients will not raise any objection from making any construction on the land in question for shifting and, if necessary, they will execute all documents necessary for the purpose.

It is stated on behalf of the Respondents that the said, English Medium School is being carried on in that premises unauthorised and in illegal manner. The said English Medium School is upto Class VIII. It is also stated that the said School, i.e. Sir Romesh Mitter Girls'' School, does not belong to the trustees, but it belongs to the Managing Committee and in the interest of the Girls'' School it is suffering very badly for running the said English Medium School, in the same premises encroaching a portion of the premises. It is stated that the owner of the said School is shown in the municipal records as a Managing Committee and not the Trustees.

Mr. Arun Prakash Sarkar, learned Advocate appearing on behalf of the applicants submits that unless the said English Medium School is allowed to continue in the said premises, in that event the fate of the boys reading in the School will suffer very badly and the School will ultimately have to be closed down. It was further submitted that the trustees were not parties in the earlier proceedings wherein an order was passed by the earlier Division Bench. Whether the trustees were parties or not and whether the judgment is binding upon them or not cannot be decided within the scope of this appeal inasmuch as the judgment of the Division Bench of this Court the matter had reached its finality and not only binding upon the parties, but also upon this Court. If any order was passed in the absence of any party, it was a duty of that party to take steps to get that order recalled in appropriate time by appropriate procedure. But so long as the judgment of the said Division Bench remains neither the learned Single Judge nor the Division Bench of this Court can pass any order contractor inconsistent with that judgment. Any order passed in this appeal would virtually have the effect of interfering with that judgment of the Division Bench which have reached its finality. So many years have passed, but no step has been taken for shifting of the School in terms of the order of the earlier Division E Bench, and it appears that shifting of the said English Medium School has become inevitable and merely on the ground of inconvenience of the students an order passed by the Court cannot be made nugatory as the order passed meant to be carried out. it appears to us the said English Medium School have no right to continue on that premises.

We do not find any reason for not carrying out the order for the last 9 years. The conduct of the parties does not inspire us for making any concession in favour of the English Medium School. But in the facts and circumstances of the case there is no scope on the part of this Court to give any relief, and further it appears, that the said English Medium School is not recognised by any Board or Council and the said private English Medium School can be shifted and carried out at any place according to the choice of the authority of that School. Accordingly, we do not find any reason to pass any order as prayed for in this application. But considering the peculiar facts and circumstances of this case, the English Medium School is given time till September 15, 1994, to vacate the premises failing which the Respondent will be at liberty to take steps and give effect to the order of the Division Bench passed on June 6, 1995.

All parties concerned are to act on a signed Xerox copy of this judgment on usual undertaking.

Nikhil Nath Bhattacharjee J.

I agree.