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Pushpa Rani Ghose Vs. Additional District Magistrate, 24 Parganas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. 14485 (W) of 1983
Judge
Reported inAIR1984Cal294
ActsTelegraph Act, 1885 - Sections 7, 16 and 16(1); ;Telegraph Rules, 1951 - Rule 412; ;West Bengal Premises Tenancy Act, 1956 - Section 2; ;Code of Criminal Procedure (CrPC) , 1974 - Section 20(1) and 20(2)
AppellantPushpa Rani Ghose
RespondentAdditional District Magistrate, 24 Parganas and ors.
Appellant AdvocateR.N. Mitra and ;Aloke Chakrabarty, Advs.
Respondent AdvocateGopal Chakrabarty, Adv.;N. Mitra, Adv.
Excerpt:
- .....and employees to withdraw and/or cancel the impugned order annexure 'c' passed by the additional district magistrate, alipore, 24 pargunas in miscellaneous case no. 43 of 1983.2. the petitioner has made the additional district magistrate, divisional engineer, 36 exchange, the general manager, calcutta telephones parties in this writ application. he has also made narayan chandra ghosh and kanailal ghosh parties as the telephone is going to be installed at their instance.3. the petitioner's case is that she is the landlady in respect of premises no. 80, raja dinendra street, and narayan chandra ghosh was a tenant since 1973. when he came as a tenant it was agreed that he would not be entitled to run any press including any printing press in the premises covered by the said tenancy. but.....
Judgment:
ORDER

Ashamukul Pal, J.

1. This is an application made by Pusparani Ghosh (the petitioner herein) for issuance of a writ in the nature of mandamus directing the respondents including the agents, subordinates and employees to withdraw and/or cancel the impugned order Annexure 'C' passed by the Additional District Magistrate, Alipore, 24 Pargunas in Miscellaneous Case No. 43 of 1983.

2. The petitioner has made the Additional District Magistrate, Divisional Engineer, 36 Exchange, the General Manager, Calcutta Telephones parties in this writ application. He has also made Narayan Chandra Ghosh and Kanailal Ghosh parties as the telephone is going to be installed at their instance.

3. The petitioner's case is that she is the landlady in respect of premises No. 80, Raja Dinendra Street, and Narayan Chandra Ghosh was a tenant since 1973. When he came as a tenant it was agreed that he would not be entitled to run any press including any printing press in the premises covered by the said tenancy. But he violated the conditions of the said tenancy besides being a defaulter. The petitioner filed a suit for eviction on the ground of default, nuisance and use of the premises for the Purpose for which the premises was never let out. She got a decree on 21st March, 1983 in the said suit and said Narayan Chandra Ghosh was directed to vacate the promises in suit within six months from the date of the decree.

4. In para 8, the petitioner states that on 16th December, 1079, certain persons representing themselves to be the subordinates and agents of the telephone authorities came to the premises No. 80, Raja Dinendra Street, wherein the petitioner resides and the said persons start-ed digging a portion in or around the said premises for installing cable for Providing telephone connection to respondent 5 in his tenancy. Petitioner objected. Thereafter, the petitioner served with a writ petition at the instance of the said Narayan Chandra Ghosh. Justice T. K. Basu on 26th July, 1982 (as it is stated in paragraph 11 of the petition) disposed the said application directing inter alia that telephone authorities will instal the telephone in the premises and in case of obstruction and resistence they will take necessary help from the police authorities. The matter went before the appeal Court and after hearing the learned appeal Court (para 16 of the petition) by its order dated 13th September, 1932 passed the following order:-- 'An interim order of injunction will continue as long as the respondents do not get permission of the installation of the telephone from the District Magistrate of 24-Parganas. The District Magistrate will dispose of the application made by the Telephone Authorities or respondent 7 (Sri Narayan Chandra Ghosh) upon notice to the landlord/petitioners/appellants herein. After such application is made, the District Magistrate will dispose it as early as possible. The application is thus disposed of.'

5. The Additional District Magistrate heard this matter as referred to hereinbefore in Misc. Case No- 43/83 and came to the finding that 'the direction of the Hon'ble Chief Justice of the Hon'ble High Court could be taken up that the telephone authorities will be given necessary police and administrative help in the installation of the telephone' and he ordered that the Divl. Engineer, 35, 36 Exchange would take action in accordance with his departmental Rules and Regulations and in terms of the order of Hon'ble High Court, regarding the installations of a telephone in the premises of the petitioner. The officer-in-charge, Manicktala P. S. is directed to extend necessary police help to the telephone authorities for the lawful discharge of their functions in this matter, if approached by the telephone authorities.

6. Mr. Mitra, Counsel for the petitioner contended that the respondent Narayan Chandra Ghosh had no right to have the telephone installed in the said premises because he has ceased to be a tenant within the definition of Section 2 (h), West Bengal Premises Tenancy Act. Hisargument is that since the decree has been passed he has ceased to be a tenant and no relationship of landlord and tenant exists and as such he has no locus standi to apply for installation of telephone in the said premises where he has lost his right as a tenant. His second contention is that by the order of the appeal Court the 'District Magistrate' was to dispose of the application made by the telephone authorities and as the matter was heard and disposed of by the Additional District Magistrate the order passed by him as contained in Annexure 'C' is void, nugatory and no effect could be given thereto.

7. After hearing the respective argument of the Counsel of the parties I am rather unable to accept the contention of Mr. Mitra.

8. So far the first part is concerned installation of a telephone is a personal right and telephone authorities may instal telephone to a person on his application in accordance with due provisions of rules framed under the Telegraph Act The contention of Mr. Mitra is that as Mr. Ghosh has ceased to be a tenant and he has no right to have the telephone installed in the premises of his erstwhile landlady is not tenable inasmuch as the tenant still resides over there and execution proceedings have not yet been levied. So long as the tenant is not evicted in accordance with due process of law, his right to stay does not come to an end. The contention of Mr. Mitra that he has ceased to be a tenant within the meaning of Section 2 (h), West Bengal Premises Tenancy Act, becomes unsustainable because in the matter of installation of telephones that factor, in my view, has the least consideration.

9. Secondly, the other argument on which more stress has been laid by Mr. Mitra is that the order is bad because the Division Bench of our Court directed the District Magistrate to dispose of the matter but as the Additional District Magistrate has disposed it of his finding has no weight in the eye of law and as such his finding is nugatory. On that point too I am unable to accept the contention of Mr. Mitra. Relevant portion of Section 16, Telegraph Act, reads as follows:-- 'if the exercise of the powers mentioned in Section 10 in respect of property referred to in Clause C of the section is resisted or obstructed the District Magistrate may. In his discretion, orderthat the telegraph authority shall be permitted to exercise them.' Question is when the Division Bench referred the matter to the District Magistrate for disposal could Additional District Magistrate assume jurisdiction to dispose it of. Mr. Mitra argued he could not. Because according to him it was a specific order upon the District Magistrate. So he and none else could do it.

10. But every order must be given a reasonable construction. When thc Division Bench referred the matter to the District Magistrate for disposal it can be safely presumed that the Division Bench, had in its contemplation the provisions of Section 16(1) of the Indian Telegraph Act under which provision the District' Magistrate has been given the discretion to order the telephone authorities to exercise the powers mentioned in Section 10 of the said Act.

11. It may be noted here that Section 20, Cr. P. C., lays down the provisions of appointment of District Magistrate and Additional District Magistrate by the State Government. Under Section 20(1) in every district the State Govt. may appoint as many persons as he thinks fit to be Executive Magistrates and shall appoint one of them to be District Magistrate and under Section 20(2) the State Government may appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force. The provisions of Section 20(2) clearly show that the Additional District Magistrate shall have all or any of the powers of the District Magistrate not only under this Code but also under any other law for the time being in force.

12. It is rather difficult to conceive as argued by Mr. Mitra that a District Magistrate will deal with all the matters and precisely in my opinion in order to avoid that sort of impractical situation, provision of appointment of Additional District Magistrate was made empowering him to perform all or any of the functions of the District Magistrate not only under the Criminal Procedure Code but also under any other law for the time being in force,

13. Here in this instant case when the Division Bench referred the matter to the District Magistrate for his disposal it camnot be conceived that the Division Bench ruled out the disposal of matter by the Additional District Magistrate because as argued by Mr. Mitra in the order only the 'District Magistrate' has been directed to dispose of the matter. To come to such a finding would be against all kinds of practical or logical interpretation of the matter. A liberal, reasonable and practical construction must be given to the order of the Division Bench and as such the disposal of the matter by the Additional District Magistrate cannot be said to have violated the order of the Division Bench specially in view of the provisions of Section 16, Telegraph Act, read with the provisions of Section 20(1) and (2), Cr. P. C.

14. Considering all these aspects of the matter I am inclined to dismiss the writ application. But I should make it clear that 'the installation of the telephone is a personal right not attached to the premises. If by the order of the Civil Court he is ejected in due course of law and for that he has to vacate the premises the installation of the telephone, it is needless to say, cannot be taken as a plea against such ejectment.

15. Hence it is ordered. The writ application is dismissed subject to the observations made hereinbefore. No order as to costs.


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