Calcutta High Court (Appellete Side)
Mst. Khodeja Bibi vs The State Of West Bengal & Ors on 26 July, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P.No.11591(W) of 2011
Mst. Khodeja Bibi
-vs-
The State of West Bengal & Ors.
Mr. Milan Chandra Bhattacharjee
Mr. Gautam Roy ....for the petitioner
Mr. Jayanta Banerjee
Mr. Suman Sen Gupta ....for the State
Mr. Subhayu Banerjee
Mr. Ayanabha Raha ....for the private respondents
Heard on : July 26, 2011 Judgment on : July 26, 2011 The Court : The petitioner in this art.226 petition dated July 14, 2011 is seeking the following principal relief:
"a) A Writ in the nature of Mandamus directing the respondents, their men, agents and/or associates and each one of them to compensate the petitioner for total change of the nature and character of the petitioner's agricultural land situated at Mouja-Abad Malancha, Dag Nos.234,235,236,25, J.L. No.24, Khatian No.1136 measuring about 29 decimals within the Minakhan Police Station, District- North 24-Parganas to the tune of Rs.15,00000/- (Rupees fifteen lack) forthwith."
Mr Bhattacharjee appearing for the petitioner submits that the private respondents cut a portion of the river embankment and thus allowed saline water to enter the petitioner's lands; that previously this Court made an order directing the police to take action; that the police registered a case under ss. 188/427/430/431 IPC; and that after getting bail the private respondents have become more desperate.
He has submitted that although the private respondents have taken law in their hands, and in view of art.300A they cannot dispossess the petitioner of the lands of which 2 she is admittedly the owner, the police have not taken any action against the private respondents; and that since petitioner has no remedy before the Civil Court, she is entitled to approach the High Court under art.226 seeking a mandamus.
It is evident that in the name of police inaction the petitioner has approached the High Court under art.226 with a pure private dispute with the private respondents. Whether she is entitled to any compensation can be decided only by the appropriate Civil and Criminal Courts. I am unable to see how the order passed in the previous case can entitle the petitioner to pay a second visit to this Court seeking identical order.
Relevant part of the order dated December 15, 2009 passed in W.P.No.18544(W) of 2009 previously filed by the petitioner under art.226 is quoted below:
"Having heard the learned Advocates appearing on behalf of the petitioner as well as private respondents and further considering the facts and circumstances of the case, I dispose of this petition by directing the respondent Nos. 3 and 4 to take necessary steps to prevent any unlawful activities in the area in question."
If after getting bail in connection with Minakhan P.S. Case No.159/10 dated July 27, 2010 under ss.188/427/430/431 IPC the private respondents have committed offence once again and the police have not registered any fresh FIR, that does not give the petitioner an automatic right to approach the High Court under art.226.
She ought to have approached the Criminal Court with her complaint examining which the Criminal Court could consider the question of passing an order either under s.156(3) or s.190 CrPC. There is no exceptional reason why power under art.226 should be exercised for examining the worth of the allegations and recording a prima facie finding regarding commission of cognizable offence by the private respondents.
The argument concerning art.300A is totally misconceived. If the private respondents are threatening to dispossess the petitioner, that has nothing to do with the provisions of art.300A of the Constitution. It is not that the State has taken any step to 3 dispossess the petitioner of the lands without due process of law. I am unable to accept the argument that the petitioner has no remedy before the Civil Court.
In my opinion, her remedy, if any, was only before the Civil and Criminal Courts. She is not entitled to any relief from the Writ Court.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) sb