The main legal point established in the judgment is the prohibition on operating a lift without a license under Section 7 of the West Bengal Lifts and Escalators Act, 1955.

1. The petitioners are before this Court seeking issuance of mandamus commanding the respondents to immediately recall or rescind or cancel any sanction or licence provided for installation and running of lift in the premises under the occupation of the private respondent. This writ petition was moved on 16th August, 2017 when the following order was made:-

“Mr. Singh, learned advocate appears on behalf of the petitioners and submits, the private respondent is a tenant who has installed a lift in the demise. He refers to an affidavit sworn by the private respondent before notary on 4th July, 2003 in support of his submission that the said respondent is a tenant. He then refers to communication dated 21st March, 2017 made by the Public Information Officer (PIO) in answer to query raised on behalf of the petitioners regarding whether any licence had been granted in respect of installation and use of the lift. The answer is in the negative as appears therefrom. He then relies on Section 7 of the West Bengal Lifts and Escalators Act, 1955 in making his prayer for interim order.

2. On behalf of the respondent no. 3 it is submitted that no licence for the lift had been granted. Mr. Ganguly, learned advocate appearing on behalf of the private respondent submits, no licence was obtained by his client before installing the lift. He, however submits, the writ petition is not maintainable since a suit had been filed by the petitioners in which they claimed they had an interim order to the same effect, passed in appeal.

3. Mr. Singh seeks adjournment to make his submissions regarding the point of maintainability raised.”

4. Mr. Singh hands up copies of plaint in T.S. 710 of 2016 (Amit Dhandhania & Ors. vs. Abhay Singh Jain), the injunction application and, inter alia, interim order passed in appeal directing:-

“The respondent and his men and agents, servants, sub tenants and persons claiming under him are hereby restrained from running and operating the lodge and the lift, housed in the building constructed in the suit premises till 13.09.2016.”

5. He then hands up Order no. 8 dated 20th September, 2016 passed by the trial Court in which, inter alia, the following was said:-

“Admittedly, the defendant is in possession and at this juncture while disposing of the interlocutory application the genuinity and validity of the documents through which the defendant is claiming title and executed by the predecessor of the plaintiff cannot be adjudicated without trial and evidences from respective parties, as such, I find that the balance of convenience and inconvenience do not weighs in favour of the plaintiff and admittedly the plaintiff is out of possession which manifestly proves the fact that plaintiff fails to establish his prima facie, case and the temporary injunction as prayed by the plaintiff is liable to be rejected.

ORDERED

That the temporary injunction petition filed by the plaintiff under order 39 rule 1 and 2 read with section 151 CPC is hereby thus considered and stands rejected on contest, without any orders as to the costs.”

6. According to him, the writ petition is maintainable. His clients had approached the Civil Court with a civil dispute regarding tenancy. Injunction was claimed in that context. In the writ petition his clients have sought for the relief as aforesaid by which the respondents should be directed to act in accordance with law. When admittedly the private respondent has not obtained a licence for installation and operation of the lift, section 7 of the West Bengal Act of 1955 is a bar to the working of such lift.

7. Mr. Ganguly however submits, the petitioners availed of efficacious remedy in filing the suit. The restraint order regarding use of lift was obtained though since vacated. The petitioners cannot having thus availed of efficacious remedy thereafter seek to re-agitate the same grievance before the writ Court which, in exercise of discretion, should dismiss the writ petition. He submits further, the petit