Prabir Kumar Paul & Ors vs Jyoti Prakash Pal & Ors

Jyoti Prakash Pal, appellant in MAT 614 of 2019, was the petitioner in W.P. 16106 (W) of 2017. The said writ petition was disposed of by a learned Judge of this Court by an order dated 20th December, 2018 directing demolition of an unauthorised construction raised by the respondents 10 to 14 therein, viz. Prabir Kumar Paul, Rabindra Nath Paul, Barun Kanti Paul, Partha Pratim Paul and Pradyut Narayan Paul (hereafter the Pauls). Despite service of notice, the Pauls had not entered appearance before the learned Judge on the date the writ petition was disposed of.

Aggrieved by the order dated 20th December, 2018, the Pauls preferred a review petition (RVW 30 of 2019) together with an application for stay (CAN 1418 of 2019). On 14th February, 2019, the learned Judge considered the same and proceeded to pass the following order:

"Review of the order dated 20th December, 2018 has been sought and CAN 1418 of 2019, has been filed seeking stay thereof.

It appears from the records that the review applicants original private respondents not appear despite service of notice, when the order dated 20th December, 2018 was passed.

This matter has been mentioned expressing grave and extreme urgency since the demolition, as ordered by this Court, is fixed by Howrah Zilla Parishad to be conducted tomorrow.

The matter reveals suppression of material facts, multifarious and acrimonious proceedings between the family members and co-sharers in respect of a property located at Howrah. Such vendetta has been unleashed by misuse judicial proceedings.

On 3rd April, 2017 a show- cause notice appears to have been issued by Howrah Zilla Parishad to the review petitioner for making unauthorised construction in the property. The notice was issued under Section 46 read with Sections 52 and 53 of the Town and Country Planning Act, 1979.

Thereafter a writ petition being No.16106 (W) of 2017 is filed by Jyoti Prakash Pal before this Court wherein a co-ordinate Bench of this Court on 5th July 2017 had ordered the parties, particularly the review applicants herein not to undertake any construction at the premises in question.

Thereafter the said Jyoti Prakash Pal filed a Civil Suit being Title Suit No. 177 of 2017 for partition and injunction before the learned Civil Judge (Senior Division) 1st Court at Howrah in which an order of status quo was passed on 13th August, 2017.

A neighbour of the premises thereafter filed a writ petition being W.P. No. 17396 (W) of 2017 impleading the review applicants herein as respondents. In the said writ petition by an order dated 07.11.2017 the co-ordinate Bench directed the Howrah Zilla Parishad to submit a report as regards the condition of the premises.

Thereafter Howrah Zilla Parishad filed a report before this Court as ordered in W.P. No. 17396 (W) of 2017 stating that the portions in the premises where certain toilets and latrines are located are causing nuisance to the entire locality.

The said co-ordinate Bench of this Court on 9th January, 2018 permitted the review petitioner herein under the supervision of the Howrah Zilla Parishad to effect repairs for the purpose of removal of nuisance at the said property. It is specifically ordered in the said writ petition that renovation, development or construction shall not be made in the name of removal of nuisance. The proceedings before the Howrah Zilla Parishad had not been placed before the said co-ordinate Bench.

Thereafter a writ petition being W.P. No. 16106 (W) of 2017 was filed wherein it was alleged that there was unauthorized construction in respect of the said property by reference to the notice issued by Howrah Zilla Parishad dated 3rd April, 2017 referred to hereinabove.

This is one proceeding, where the review applicants do not chose to represent themselves. This Court, therefore, based on the notice issued by Howrah Zilla Parishad directed demolition of the unauthorized construction. The earlier two orders of co-ordinate Benches of this Court as also the order of status quo had not been placed before this court and hence suppressed.

What is clear and apparent from the above is that different members of the same family have tried to settle scores against one another in abuse of this Court's process by misleading various Benches, suppressing material facts and have obtained orders that have the effect of pitting one Court against the other.

This Court is of the view that the proceeding narrated hereinabove between the members of the same family are clearly in abuse the process of law and obstructing the course of justice. Each of the applicants as also to some extent the Howrah Zilla Parishad are guilty, prima facie, of Contempt of Court.

The conduct of the parties and each of them appears prima facie within the definition of Section 2(d)(ii)(iii) under the Contempt of Courts Act, 1971.

This Court, therefore, deemed it necessary that writ petitions mentioned hereinabove be placed before the Hon'ble Acting Chief Justice for assignment before one Bench so that the same can be suitably dealt with. Such decision by the Hon'ble Acting Chief Justice is also necessary as the process of more than one Court have been abused by the petitioners as well as the respondents.

In so far as the order of demolition that is going to be carried out tomorrow, the review applicants, who seem to be primarily aggrieved by the order of demolition and who may have set up a neighbour in filing W.P. No. 17396 (W) of 2017, shall put in a sum of Rs.15,000/- in course of the day for the demolition to be stayed by Howrah Zilla Parishad. Howrah Zilla Parishad shall accept the amount and keep the same in a suspense account.

Let this matter be placed before the Hon'ble Acting Chief Justice in this regard."

The said order dated 14th February, 2019 is the subject-matter of challenge in three intra-court writ appeals. The first one is numbered MAT 292 of 2019, which is at the instance of the Pauls. The second one, numbered MAT 614 of 2019, is at the instance of Jyoti Prakash Pal. There is a third appeal, numbered as MAT 779 of 2019, at the instance of Prodyut Kumar Pal, who was the petitioner in W.P. 17396 (W) of 2017, referred to in the aforesaid extract of the impugned order.

Prodyut Kumar Pal was not a party to the writ proceedings out of which the review arose and, therefore, he has applied for leave to appeal (CAN 5326 of 2019) together with an application seeking condonation of delay (CAN 5899 of 2019) in tender of MAT 779 of 2019.

We have perused the averments in the two applications. Cause shown is sufficient. Delay in tender of the appeal stands condoned. The prayer for leave to appeal is granted. CAN 5326 of 2019 and CAN 5899 of 2019 stand allowed. Register MAT 779 of 2019, if it is otherwise in form.

We have heard Mr. Partha Sarathi Bhattacharyya, learned senior advocate representing the Pauls, Mr. Mahmood, learned advocate for Jyoti Prakash Pal and Mr. Mukherjee, learned senior advocate appearing for Pradyut Kumar Pal.

It has been brought to our notice by Mr. Mukherjee that W.P. 17396(W) of 2017 has been disposed of finally by an order dated 9th January, 2018 passed by Hon'ble Subrata Talukdar, J. Reading the order under appeal, we find reference made by the learned Judge to W.P. 17396 (W) of 2017 as well as W.P. 16106 (W) of 2017. We are inclined to believe that the reference to - "writ petitions mentioned hereinabove which were required to be placed before the Hon'ble Acting Chief Justice for assignment" would mean the said two writ petitions, i.e., W.P. 17396(W) of 2017 and W.P. 16106(W) of 2017.

We are not too sure as to whether His Lordship was apprised that W.P. 17396 (W) of 2017 does not survive with the order of its disposal dated 9th January, 2018. In any event, what would remain of "writ petitions mentioned hereinabove" is W.P. 16106 (W) of 2017.

While hearing the review petition, the learned Judge did not recall the order dated 20th December, 2018 on review and, therefore, W.P. 16106 (W) of 2017 would still be treated as a disposed of writ petition in the records. Without recalling the order dated 20th December, 2018, no direction could have been passed for assignment of W.P. 16106(W) of 2017 to any Court. Although the order dated 14th February, 2019, under appeal before us, could be strained to read as one reviewing the order dated 20th December, 2018, it would have been appropriate for the learned Judge to record a formal order recalling the order dated 20th December, 2018 and reviving W.P. 16106 (W) of 2017 for consideration afresh. There being no order of recall, we hold that W.P. 16106 (W) of 2017 has not yet revived.

In view of the fact that W.P. 17396 (W) of 2017 has already been disposed of and it is only RVW 30 of 2019 that is still pending (in the absence of an order disposing it of), we are of the considered opinion that the matter ought to be reconsidered by the learned Judge and RVW 30 of 2019 disposed of on merits one way or the other.

11.We also place on record the joint prayers made by Mr. Bhattacharya for the Pauls, Ms. Chowdhury, learned advocate for the Zilla Parishad, Mr. Mukherjee for Prodyut Kumar Pal and Mr. Mahmood for Jyoti Prakash Pal that the observations made by the learned Judge that they are in contempt, ought to be deleted from the order under appeal.

12.The Zilla Parishad has not carried the order in appeal; hence, it is not entitled to claim any relief in these appeals.

We also find no reason to effect any deletion in view of the fact that the observations made by the learned Judge are only prima facie and His Lordship has not even referred the act(s) of criminal contempt to the Hon'ble Division Bench having determination to consider the same for drawing up appropriate proceedings.

The parties shall be free to take steps in accordance with law, henceforth.

We also place-on-record the submission of Mr. Bhattacharyya that in terms of the order dated 14th February, 2019, the Pauls have deposited Rs.15000.00 (Rupees fifteen thousand) and, therefore, the order of stay passed by the learned Judge has become operative. Such payment and acceptance shall abide by the final result of the review petition.

With the aforesaid observations, the appeals as well as all pending applications stand disposed of, without order for costs.

Photostat certified copy of this order, if applied for, be furnished expeditiously.