HIGH COURT AT CALCUTTA
                         Civil Appellate Jurisdiction
                                Appellate Side

Present:

The Hon'ble Justice Jyotirmay Bhattacharya
             AND
The Hon'ble Justice Ishan Chandra Das



                                   MAT 1962 of 2016
                                  (CAN 11820 of 2016)
                                  (CAN 11821 of 2016)

                                       (Assigned)


                                Abu Bakkar Mridha & Ors.
                                         -versus-
                               State of West Bengal & Ors.


For the Appellants   :       Mr. Probal Kumar Mukherjee,
                             Mr. Ayanabha Raha,
                             Mr. Anindya Bose.

For the Respondent   :       Mr. Tapan Chakrabarti,
Nos. 10 to 56                Mr. Abdul Alim.

For the State        :       Mr. Lakshmi Kumar Gupta,
                             Mr. Joyak Kumar Gupta.


Heard On             :       19th January, 2017

Judgement On         :       19th January, 2017


Jyotirmay Bhattacharya, J.

Re : CAN 11820 of 2016.

This miscellaneous appeal was filed beyond the period of limitation. There was 96 days' delay in filing the appeal.

Reason for the delay has been explained by the appellants in their application for condonation of delay.

It is stated therein that 13 petitioners are all partners of the partnership firm who are running the brick field business in the name and style as Ashli Bricks. Since no individual of the said partnership business could take the ultimate decision for filing this appeal for challenging the order passed by the writ court, some delay was caused.

Ultimately such decision for preferring an appeal was taken by the appellants/petitioners at a point of time when the time for preferring the appeal expired. However, immediately after such decision was taken by the appellants/petitioners, they applied for the certified copy of the impugned order dated 13th July, 2016 on 28th September, 2016. Requisites for obtaining the certified copy of the said order was put in on 4th November, 2016; i.e. the day when requisites to be put in by the appellants, was notified. The certified copy of the impugned order was made ready for delivery on 7th November, 2016 and immediately thereafter, the memorandum of appeal was prepared and the instant appeal was filed on 16th November, 2016.

It is true that where decision for preferring an appeal cannot be taken by an individual, and decision for preferring an appeal depends upon the decision of numerous persons, some time is required for taking the ultimate decision for filing an appeal before the appellate forum.

This is exactly what happened in the present case. As such, we feel that the delay in filing this appeal has been sufficiently explained by the appellants/petitioners in this application for condonation of delay.

Accordingly, we condone the delay.

Let the appeal now be registered.

The application for condonation of delay is disposed of.

Re : M.A.T. 1962 of 2016.

Immediately after the delay in filing this appeal was condoned, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit.

We are informed by the learned counsel appearing for the parties that all papers which are necessary for disposal of the appeal are annexed to the stay application.

As such, we have decided to dispose of the appeal itself on merit on the papers available before us by dispensing with the requirement of filing paper books in this appeal.

Let us now consider the merit of the instant appeal in the facts of the present case.

Admittedly the appellants are running a brick field in the name and style of Ashli Bricks. The appellants claim that they carry on the said business in co-partnership. The private respondent nos. 10 to 56 claimed themselves to be partners of the said partnership in which the appellants are also partners. The private respondents claim that they hold 60% share in the partnership business. It is alleged by the private respondents that they being the majority partners of the said partnership business, have decided not to run the said business without any valid quarry permit and order of conversion for change of classification of the land as per law. Those respondents complained that the writ petitioners are carrying on the said business in the name and style of Ashli Bricks without obtaining valid quarry permit from the concerned authority and without obtaining any order of conversion of the classification of the land from the competent authority.

Earlier a writ petition being W.P. 36984(W) of 2013 was moved by those private respondents before this Court complaining that the appellants herein are carrying on the said business of brick field in the name and style of Ashli Bricks without obtaining valid quarry permit from the concerned authority and without obtaining any order of conversion for change of classification of the land on which such brick field business is being carried on by the appellants herein. They thus sought for issuance of a writ in the nature of mandamus commanding the State-respondents to take legal steps to stop the illegal brick field viz., Ashli Brick manufacturer at Mouza Sonadana, P.S. Basirhat, District- North 24-Parganas immediately.

The said writ petition was disposed of by the learned Single Judge of this Court on 13th August, 2014 whereby the concerned DL & LRO, Barasat was directed to dispose of the representation made by the petitioners upon giving opportunity of hearing to all the interested parties and to pass reasoned order and to communicate the same to the petitioners by six weeks with a rider that in case it is found that allegation of the petitioners therein is correct, the authorities will take immediate steps.

Pursuant to such order passed by the writ court on 13th August, 2014 in W.P. 36984(W) of 2013, the DL & LRO, Barasat initiated a miscellaneous case being Misc. Case No. 215 of 2013. The said miscellaneous case was ultimately disposed of by the concerned DL & LRO on 29th June, 2015 vide Order No. 3 whereby the opposite parties therein viz., the appellants herein were directed to close down their business of brick manufacturing over Ashli Brick field with a rider that they may file fresh application before the appropriate authority in view of the direction of the Hon'ble National Green Tribunal, Eastern Zone and in terms of the latest circular of Land Reforms Department regarding continuation of brick manufacturing over the said brick field. Such conclusion was drawn by the said DL & LRO, Barasat in view of the direction passed by the Hon'bel National Green Tribunal, Eastern Zone in O.A41/EZ/2014 whereby the District Magistrate North 24 Parganas was directed to close down all brick fields whether established prior to 2000 or thereafter. It was observed that following such direction of the National Green Tribunal, necessary closure notice had already been served upon all brick fields within the District North 24 Parganas including present brick field that is "Ashli Brick Field".

While passing the said order, the DL & LRO, Barasat recorded that the said Ashli Brick Field is operating the business of manufacturing bricks since 1978 with necessary certificates from West Bengal Pollution Control Board. It was also recorded therein that the last time consent to operate the said brick field was renewed vide memo no. L- 17011/81/2012- DL&LRO- 2351 dated 27.12. 2013 and by virtue of such renewal, consent to operate remains valid up to 30th June, 2017. It was also recorded in the said order that the said brick field is paying royalty and cesses regularly. It was also recorded therein that as per the record of rights, the classification of the brick field is found to have been recorded as 'EET Khola' and the brick manufacturing activities are being carried on in the said brick fields since 1978.

Despite it was recorded in the said order that the brick manufacturing business is being carried on in the said brick field with valid consent to operate issued by the West Bengal Pollution Control Board and also on compliance of the other requisites statutory formalities, the said DL & LRO, Barasat directed to close down the said brick filed without understanding the real purpose of the order of the National Green Tribunal, Eastern Zone passed in OA No. 41 EZ/2014 wherein direction was given to close down the brick fields which are carrying on the brick manufacturing business without complying with the statutory formalities and without obtaining the consent to operate from the Pollution Control Board.

The legality of the said order passed by the DL & LRO, Barasat on 29th June 2015 vide order No. 3 was challenged by the appellants herein by filing a writ petition being W.P. No. 7196 (W) of 2016 before a learned Single Judge of this Hon'ble Court. The learned Single Judge of this Hon'ble Court dismissed the said writ petition by holding that the 13 individuals being the writ petitioners without having semblance of jural relationships between them cannot maintain the writ petition to espouse their grievances by joining themselves together as co- partners on an identical cause of action upon payment of a single court fees. It was also held therein that even if the petitioners have an identical cause of action, the same is required to be espoused individually and certainly not an payment of a single court fees which tantamounts to abuse of process of this Court in view of the judgments pronounced by this Court in certain decision referred to in the impugned order. While dismissing the said writ petition, the learned Single Judge also expressed his views that the dispute of such nature between two rival groups of individuals cannot be decided by the Writ Court in exercise of his high prerogative Constitutional writ jurisdiction under Article 226 of the Constitution of India. The writ petition is thus, dismissed with costs assessed at 50 GMs. to be deposited by the appellants/petitioners with the High Court Legal Services Committee, Calcutta.

The legality and/or propriety of the said order passed by the learned Single Judge of this Court on 13th July, 2016 in W.P No. 7196(W) of 2016 is under challenged in this mandamus appeal at the instance of the writ petitioners who are the appellants before us.

Let us now consider as to how far the learned Single Judge was justified in dismissing the writ petition on the findings so recorded in the impugned order.

Here is the case where we find that the 13 writ petitioners/appellants did not come forward to ventilate their individual grievance before the Writ Court. They were all partners of a partnership firm which was carrying on business of manufacturing bricks in the name and style of Ashli Brick. The partners came forward to ventilate the grievances of the partnership firm; so it is not the case where the 13 individual petitioners came before the Court to espouse their individual grievances in the said writ petition.

We thus hold that when all the petitioners have come forward collectively as partners of a partnership firm to espouse the grievance of the partnership firm, the writ petition is well maintainable on payment of a single court fees.

That apart, even assuming that 13 petitioners could not have maintained the writ petition on payment of one single court fees, still then the writ petition could not have been dismissed as a whole. In a case where causes of action of numerous writ petitioners are distinctly different from each other and all these causes of actions cannot be joined together, then before rejecting the writ petition as a whole, an opportunity is required to be given to the petitioners to amend the writ petition and expunge those petitioners whose causes of action cannot be joined together so that the writ petition can be maintained at least at the instance of only one petitioner. Alternatively when it is found that the causes of action of all the writ petitioners are joint and inseparable and common relief is claimed by all the petitioners in one writ petition, then the court cannot reject the writ petition for non-payment of Court fees for the individual petitioners. In our view these are all curable defects which cannot lead to dismissal of the writ petition straightway.

We thus cannot agree with this part of the findings of the learned Single Judge of this Court on the point of maintainability of the writ petition.

The other part of the findings of the learned Single Judge of this Court that the dispute of such nature between two rival groups cannot be adjudicated by this Court in exercise of its high prerogative Constitutional writ jurisdiction under Article 226 of the Constitution of India, cannot be approved by us as we find that the rival groups are not fighting on an issue relating to their status in the partnership business or relating to their interest in the said partnership business.

On perusal of the pleadings of the parties, it appears to us two rival groups of partners of one common partnership firm are not fighting on an issue as to whether the partnership firm can be allowed to continue its business of manufacturing bricks in the said brick field without obtaining valid quarry permit from the competent authority and also without obtaining order of conversion of the classification of the land from the concerned authority. The private respondents claiming themselves to be the 60% share-holders decided that without valid quarry permit and without obtaining valid conversion certificate relating to the classification of land of the concerned authority, the partnership business should not carrying on the business of manufacturing bricks in the said brick fields. Since the writ petitioners/appellants were continuing with the said business by ignoring the majority decisions of the partners, the said majority partners namely the private respondent filed the earlier writ petition being W.P. 36984(W) of 2013.

The present writ petitioners/appellants do not claim that they will carry on such business without complying with statutory formalities. They claim that they are carrying on this business by complying with all necessary formalities.

We have already narrated above the order passed in the said writ petition and the fate of the follow up proceeding which was disposed of by the concerned DL & LRO, Barasat. As such, to avoid repetition of the same we restrain ourselves from narrating those facts once again.

In these set of facts, we are now required to consider as to whether the DL & LRO was justified in passing the order directing the writ petitioners/appellants to close down the said brick filed business.

We have already mentioned above that even the said DL & LRO, Barasat while passing the said direction upon the writ petitioners/appellants to close down the said business categorically recorded in the said order that the said brick field business is being carried on since 1978 with all valid licensees and also with valid consent to operate the said business, issued by the West Bengal Pollution Control Board. The DL & LRO, Barasat has also recorded in the said order that the consent to operate the said business, issued by the West Bengal Pollution Control Board remains valid till 30th June, 2017. When such being the finding of the concerned DL & LRO, we are really at a loss to understand as to what prompted the said DL & LRO, Barasat to issue such the direction for closing down the said business.

In our view, the DL&LRO misconstrued the direction passed by the National Green Tribunal Eastern Zone in OA No. 41 EZ/2014 and by misinterpreting the said order of the National Green Tribunal, the said authority passed the above direction upon the writ petitioners/appellants to close down the said business.

We have also considered the order of the National Green Tribunal passed in original application No. 41/2014/EZ. The operative part of the said order which is relevant for the present purpose, are set out herein:-

"So far as rest 383 brick fields are concerned, whose names and particulars are identified, which are in operation since post 2000 year without any consent to establish and consent to operate from the State pollution Control Board under The Water (Prevention and Control of Pollution) Act, 1974. The Air (Prevention and Control of Pollution) Act, 1981 read with Environment (Protection) Act necessary order of closure has been issued against 149 brick field owners. The District Magistrate, North 24 Parganas, Superintendent of Police, North 24 Parganas and other officers concerned of the district administration are directed to issue closure order for rest 243 brick fields in accordance with law and take steps and measures strictly to comply with the order. Action report taken by them to be field on next date.

The State Pollution Control Board is directed to take steps and measures on the basis of the respective affidavits file by the respective District Magistrates of South 24 Parganas and North 24 Parganas in accordance with law and with regard to closure of operation of brick fields. They will submit compliance report on the next date fixed."

On reading of the operative part of the said order, it appears to us that closure of those brick fields were directed where the bricks fields were operative without any consent to establish and consent to operate from the State Pollution Control Board. Since in the present case, the concerned DL & LRO, Barasat himself recorded in the order that the petitioners/appellants are carrying on the said business in the said brick field since 1978, after complying with the statutory formalities and also after obtaining consent to operate from the West Bengal Pollution Control Board and since the said consent to operate remains valid till 30th June, 2017, we find no reason for issuance of direction upon the writ petitioners/appellants to close down the said business.

We thus, set aside the impugned order as also the order passed by the DL&LRO, Barasat on 29th June, 2015 vide order No.3 in the Misc case No.215 of 2013.

We thus hold that the said brick manufacturing business may be carried on in the said brick field and such business cannot be closed so long as such business is being carried on after complying with the statutory formalities and/or during the validity period of the consent to operate issued by the West Bengal Pollution Control Board.

The appeal is allowed with the above direction.

Both the appeal and applications are thus disposed of.

Urgent photostat certified copy of this judgement and order, if applied for, be given to the parties as expeditiously as possible.

(JYOTIRMAY BHATTACHARYA, J.) (ISHAN CHANDRA DAS, J.)