SOUMITRA KUMAR GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have heard the learned counsels for both the parties. The Sub-Divisional Land and Land Reforms Officer lodged an FIR with the O. C. , Falakata P. S. on 14th of February, 2002 against the present petitioner alleging that the said petitioner, owner of Steel Brick Field was carrying on business in the brick field though his brick field was given in Jimma in favour of Upa-Pradhan of Dhanirampur Gram Panchayat by the B. L. and L. R. O. On this complaint a formal FIR being Falakata P. S. Case No. 19 of 2002 dated 23rd the IPC. It is submitted by Mr. Ashoke Chakraborty, learned Senior Advocate for the petitioner that the petitioner is a member of Bengal Brick Field Owners' Association. The said Association moved a writ petition being C. O. No. 12407 (W) of 1990 challenging applicability of Section 4c of the West Bengal Land Reforms Act 1955 in the case of brick field and there was an interim order by this Court directing stay of operation of section 4 (C) of the said Act in respect of the brick fields and the members of the Association which included the present petitioner were allowed to carry on business upon payment of usual assessed royalty. Then followed another writ application at the instance of the said Association being c. O. No. 4760 (W) of 1991 challenging claim of advance royalty on brick earth at arbitrary rate and an interim order was passed by the Writ Court. Yet another writ application was moved being C. O. No. 9314 (W) of 1993 challenging arbitrary claim of price on brick earth and his Lordship Hon'ble Justice Satyabrata Sinha (as his Lordship then was) by his Lordship's order dated 7th April, 1997 was pleased to pass an interim order. Yet, another writ application was filed being c. O. No. 15903 (W) of 1994 wherein an interim order was also passed in favour of the writ petitioners. Now it is submitted that on the strength of the series of orders of the writ court the petitioner has been carrying on business; and when carrying on business is protected by the judicial order there cannot be lodgement of a criminal case against the petitioner in view of section 78, IPC. It is business upon obtaining the land under lease from its owner and in the said lease deed, permission had been granted by the land owner to set up brick field therein and the Government of West Bengal, Department of Land and Land Reforms being by Memo No. 2739 (18)-L. Ref dated 29-09-2000 and memo No. 935 (18)-M and M/lr/aii/mandm-13/99 dated 02-02-2001 had decided to regularize unauthorized to the brick fields which have come up on or before 1-9-2000 and are located on agricultural lands and due to continuous mining, the said lands are no longer usable for agricultural purpose and in respect of the said lands the Hon'ble Court passed orders of law allowing the continuance of query of brick fields and the petitioner's brick field was established in 1994.

(2.) WHAT Mr. Chakraborty submits are all matters of record. The order dated 16th of November, 1994 shows that the petitioner was granted an interim order of injunction in respect of his brick field business in C. O. No. 15903 (W) of 1994. In all the aforesaid writ petitions interim orders were passed on the prayer of the writ petitioners including the present petitioners in respect of his own case. In the circumstance, the lodgement of the FIR on 14th of February, 2002 does not appear to be maintainable. At no point of time interim order has been vacated before the FIR was lodged.

(3.) ACCORDINGLY, the application succeeds. The proceeding is quashed.