Calcutta High Court (Appellete Side)
Kanailal Pramanick vs The State Of West Bengal & Ors on 7 March, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1
Form No.J. (2)
In the High Court at Calcutta
( Constitutional Writ Jurisdiction )
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
W.P. No.35490(W) of 2013
Kanailal Pramanick
-Vs-
The State of West Bengal & Ors.
For the petitioner: Mr. Anil Kumar Chattopadhyaya.
For the respondent Nos.6,7,8 & 9: Mrs. Rajyasri Das,
Mr. Ashish Dey.
For the State: Mr. Jayanta Banejee,
Md. T.M. Siddiqui.
Heard on : 27.02.2014.
Judgment on: 07.03. 2014.
Ashim Kumar Roy, J. :
The writ petitioner moved this application alleging that he was driven out by his four sons from the house, which was built up by him from his own earnings and while they were residing in the house by occupying the entire premises, the writ petitioner has to take shelter in a small room situated on the courtyard and was ill treated by them. It is 2 his further case that over the incident, he lodged an F.I.R. with the local Police Station which gave rise to Liluah Police Station Case No.637/12 under Setions 24/25 of the Maintenance & Welfare of Senior Citizens Act but no action has been taken by the police, therefore, the police be directed to take appropriate legal action against his four sons and for protecting his life and properties, his sons who are the unauthorised occupants of the said house be removed from there so as to enable the writ petitioner to sell and/or transfer the same to a third party for his maintenance and medical care.
On the other hand, the learned Counsel for the private respondents, i.e., the respondent Nos.6, 7, 8 and 9 (the sons), submitted that all the allegations are false and the story of torture is a fabricated one. It is further submitted that pursuant to an order passed in connection with a proceeding under Section 125 Cr.P.C., the respondents are paying the maintenance to the writ petitioner, their father, a total sum of Rs.400/- per month. She, however, not disputed that the sons are staying in the house, which was built up by the father, the writ petitioner but she vehemently disputed that the writ petitioner was thrown out. She claimed that the writ petitioner has been staying in 3 the same premises and his wife, the mother of the respondents has been staying with them and she has no complaint against them. She lastly submitted that respondent nos.6, 7, 8 and 9 are ready and willing to pay more for maintenance of their father as also take care for his treatment if necessary.
The learned Counsel for the State submitted a report, wherefrom it appears that Liluah Police Station Case No.637/12 under Setions 24/25 of the Maintenance & Welfare of Senior Citizens Act was investigated and a final report has been filed by the police in October, 2012 and during investigation, it was found that the dispute between the father and the sons were over the property and civil in nature and there was not criminality.
Heard the learned Counsel appearing for the parties. Considered their respective submissions. Perused the materials on record as also the report submitted in court.
So far as the relief sought for, I am afraid whether the State authorities can be directed, in exercise of extra- ordinary writ jurisdiction of this Court, to remove the occupants the private respondents herein from the premises even when they have no title in respect thereof. The remedy of the writ petitioner for eviction of his sons from his house 4 is available before a competent civil court and not before this court. In absence of any order from a competent civil court police is not empowered to complete the relief sought for by the writ petitioner neither this court in exercising power in writ jurisdiction can grant such relief. Even a trespasser cannot be removed from the property where he trespassed and remained for considerable period i.e. for years together by the police without the order of a competent civil court and restore the possession to its lawful owner. It is an admitted position that the police has investigated the Liluah Police Station case no.637/2012 and submitted final report. Therefore, there cannot be any allegation of inaction against the police. It is beyond the jurisdiction of this court to go into the merit of the police report and for that the petitioner has to move the court concerned where such report has been filed. To ventilate his grievance as disclose in this writ application, there is a specific alternative efficacious remedy available to the writ petitioner, therefore the question of granting such relief here does not at all arise.
The petitioner is now getting maintenance from his four sons amounting to Rs.400/- per month. Undoubtedly, the amount is too meagre for maintenance of 5 an old man suffering from various old aged diseases in these hard days. However, I appreciate what have been submitted from the side of the respondent nos.6, 7, 8 and 9, the sons of the writ petitioner that they are agreeable to increase the amount as may be directed by this court. On such undertaking, I am of the opinion, that it would be just and proper, if each of the sons pays a sum of Rs.700/- per month to the writ petitioner for his maintenance. They may also be advised to look after the treatments of his old father, occupying whose own built house now they are residing with their families.
It goes without saying that writ petitioner is always at liberty to move the competent civil court for removal of his sons from his house if so advised.
With the aforesaid observations, this writ application which has no merit otherwise stands dismissed.
Urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.
( Ashim Kumar Roy, J. )