Calcutta High Court
Tustu Pada Bera vs State Of West Bengal And Ors. on 6 February, 2007
Equivalent citations: 2007(2)CHN193
Author: Dipankar Datta
Bench: Dipankar Datta
JUDGMENT Dipankar Datta, J.
1. The petitioner claims to be the absolute owner of a portion of premises No. 18/2, Panchkori Mohanta Lane, Salkia, P.S. Malipanchghora, District Howrah by virtue of a registered deed of partition dated 12.7.1982, to which, inter alia, the respondent Nos. 7, 9 and 10 are signatories. The respondent No. 7, it is claimed by the petitioner, with an intention to purchase the demarcated portion of the petitioner's property had approached him with a request to transfer the same on a nominal consideration. The petitioner not having agreed to his proposal, the respondent No. 7 has been creating disturbances daily thereby creating a situation so that the petitioner has no other alternative but to sell his demarcated portion to the said respondent. The petitioner apprehending that the private respondents would commit cognizable offences had approached the Executive Magistrate by filing an application under Section 144(2) of the Code of Criminal Procedure giving rise to M.P. Case No. 1204/06. On consideration of the said application, the Executive Magistrate, Sadar. Howrah had passed an order on 23.11.2006 directing the Officer-in-Charge, Malipanchghora Police Station to cause a local enquiry after serving notice to the concerned parties with a further direction to maintain peace and to ensure that no illegal act is committed by any party. The police report was directed to be filed on 9th February, 2007.
2. It is the grievance of the petitioner that despite communication of the said order to the concerned Officer-in-Charge on 24.11.2006, the private respondents are continuing to threat the petitioner and his family members with dire consequences and that the police has not taken any step and has also not made any attempt to stop such activities and their passive action is encouraging the private respondents to commit cognizable offence at any point of time.
3. Mr. Manna, learned Senior Counsel appearing for the petitioner has drawn the attention of this Court to Regulations 666 and 669 of the Police Regulations, Bengal, 1943 (hereafter the PRB) and has submitted that it is the statutory duty of the police to provide help and assistance to the petitioner. He has also referred to the decision of the Apex Court reported in 2006(5) SCC 539 in support of his submission. He has, accordingly, prayed for directions on the police authorities to provide help and assistance to the petitioner and to ensure that the private respondents do not indulge in illegal activities.
4. Mr. Guha, learned Counsel for the State has submitted that the pleadings in the petition are inconsistent; while in paragraph 4 of the petition, the petitioner has averred that the petitioner has sold his property to the respondent No. 7, in paragraph 7 thereof it is his case that the private respondents are obstructing him in repairing his premises. He further submits that it is out and out a private dispute between the petitioner and the respondent No. 7 which has been made the subject-matter of adjudication by the Writ Court and, accordingly, the writ petition is not maintainable. He further submits that the facts pleaded in the petition are too vague to warrant an order from the Writ Court for providing police assistance. Lastly, he submitted that even if the Officer-in-Charge of the local police station is inactive, that would not afford a cause of action to the writ petitioner for filing a writ petition and he should be directed to pursue his remedies under the Code of Criminal Procedure, 1973.
5. Mr. Alam, learned Advocate appearing on behalf of respondent Nos.7 to 10, adopted the submissions of Mr. Guha, as noted above.
6. In reply, Mr. Manna, learned Senior Counsel submitted that existence of alternative remedy is not an absolute bar for maintaining a writ petition and in the event there is a breach of fundamental right of the petitioner at the instance of the State, a writ petition would be maintainable and in support of such contention, he has placed reliance on the decisions of the Apex Court reported in AIR 1971 SC 1021 (para 13) and AIR 2006 SC 975 (para 13).
7. Having heard learned Counsel for the parties and on consideration of the averments made in the writ petition, this Court is of the firm view that this is not a fit and proper case where discretion ought to be exercised in favour of the petitioner in exercise of writ jurisdiction.
8. The petitioner has approached the Executive Magistrate by filing an application under Section 144(2) of the Code of Criminal Procedure and 9th February, 2007 has been fixed as the date for submission of police report. Having approached the Executive Magistrate, the petitioner ought to have awaited a decision by it. The grievance of the petitioner that despite communication of the order dated 23rd November, 2006 passed by the Executive Magistrate to the Officer-in-Charge of the concerned police station no action has been taken with regard to the threats given to the petitioner and his family members by the private respondents cannot also be a ground for invoking the writ jurisdiction inasmuch as this Court does not find any pleading in this petition to the effect that the petitioner had, after receiving the alleged threats from the private respondents, reported such incident to the concerned police station. In the absence of any such complaint, the allegation of inaction of the police is without any basis.
9. Reliance placed on Regulations 666 and 669 of the PRB by learned Senior Counsel for the petitioner also appears to be misplaced. Both Regulations 666 and 669 contemplate, inter alia, action for posting of police guards on an application from a private party. In the present case nothing appears from the record that the petitioner had, in fact, made any application for posting of police guards. Not having made any such application, the condition precedent for exercise of power under Regulations 666 and 669 of the PRB was not fulfilled and no grievance in this respect can be aired by the petitioner.
10. It is true, as has been contended by the learned Senior Counsel for the petitioner that existence of an alternative remedy is not an absolute bar for entertaining a writ petition. However, the facts pleaded in the writ petition are not sufficient enough to enable the Court to form an opinion that the lives of the petitioner and his family members are in danger and that the police authorities have failed to give protection and therefore interdiction by the Writ Court is warranted. The allegations are too vague and this Court is unable to agree with learned Senior Counsel for the petitioner that on the basis of the facts and circumstances presented, interference is called for.
11. It appears from prayer (d) of the petition that a prayer has been made for declaring the petitioner to be the absolute owner of the portion of the premises occupied by him by virtue of the registered deed of partition and that the private respondents have no right, title and authority to create any obstruction in respect of ingress thereto and egress therefrom and further to obstruct and interfere with the repair works undertaken by the petitioner therein. In the humble view of this Court, such a declaration cannot be granted by the Writ Court. Writ powers are exercised by the Writ Court for enforcement of an established right and the Writ Court cannot be converted into a forum for agitating civil rights and for establishment thereof. It is the function of the appropriate Civil Court to decide such dispute, if at all a claim in this respect is lodged before it. Definitely the Writ Court would not adjudicate on civil rights.
12. For the reasons discussed above, this Court is not inclined to entertain the present petition. The writ petition fails and is dismissed, without any order for costs.
13. Dismissal of the writ petition shall not, however, prevent the writ petitioner for pursuing remedies as are provided to him under the relevant law, if so advised.
14. Urgent xerox certified copy of the order, if applied for, be furnished to the parties within 3 days from date of putting in the requisites therefor.