Calcutta High Court (Appellete Side)
Smt. Sobha Ghosh & Ors vs State Of West Bengal & Ors on 14 September, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Jayanta Kumar Biswas
W.P.No.19173 (W) of 2010
Smt. Sobha Ghosh & Ors.
v.
State of West Bengal & Ors.
Mr. Ranjan Kumar Kali, advocate, for the petitioners. Mrs. Abha Roy, advocate,
for the State.
Heard on: September 14, 2010.
Judgment on: September 14, 2010.
The Court: The petitioners in this art.226 petition dated September 8,
2010 are questioning a direction dated August 9, 2010 (at p.66) of one Saroj Kr.
Choudhury who described himself as "A.S.I. of BDD(E) PS".
Counsel for the State submits that the person who issued the impugned
direction acted as an assistant sub-inspector of police posted in Bidhannagar
(East) police station of the district North 24 Parganas.
The direction has been issued referring to one "MP No.176/2010" under
s.144(2) of the Code of Criminal Procedure, 1973. The police officer directed the
petitioner not to erect any construction on Plot No.BK-93. He stated that he was
giving the direction in terms of an order of the Executive Magistrate,
Bidhannagar in MP No.176 of 2010.
The order of the Executive Magistrate is dated August 5, 2010 and it is at
p.62. The order is quoted below:
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" Ld. Advocate submits the petition u/s-144(2) Cr. P.C. on behalf of the
petitioner.
Ld. Advocate submits on behalf of the petitioner that the petitioner is a
tenant/occupier of the scheduled premises with a registered tenancy agreement.
O.P members alongwith their men and agents are trying to disposses/oust the
petitioner from the suit property forcibly and illegally and threatening the
petitioner with dire consequences. As such there is a chance of serious breach of
peace.
I/C, Bidhannagar North is directed to enquire into the matter and submit
report early and serve notice with copy of petition upon O.P member and see that
no breach of peace takes place at the scheduled premises in the meantime."
Counsel for the petitioners submits that the petitioners have been
erecting construction on the basis of sanction given by the Municipality
concerned. Counsel for the private respondents who initiated the s.144
proceedings submits that in the name of erection of construction on the basis of sanction given by the Municipality the petitioners are actually trying to evict the private respondents without due process of law.
Needless to say that if the private respondents have reason to say that in the name of erection of construction on the basis of sanction given by the Municipality concerned the petitioners are actually trying to evict them without due process of law, then their remedy, if any, was before the Civil Court. The Executive Magistrate has no power or jurisdiction to make any order under s.144 of the Code of Criminal Procedure, 1973 for protection of their possession of any part of the plot, if they are in possession, or for restraining the persons erecting the construction from erecting any construction on the plot.
In any case, it is evident from the order of the Executive Magistrate dated August 5, 2010 that thereby noone was restrained from erecting any construction on Plot No.BK-93 with respect to which the police officer issued the impugned direction. It is, therefore, evident that the police officer has acted completely without jurisdiction. He possessed no power to issue the direction asking the petitioners not to erect any construction on the plot. The police were 3 directed to see that no breach of peace took place, and the police officer was required to enforce such direction. He clearly exceeded his authority. The direction is liable to be quashed.
For these reasons, I dispose of the petition ordering as follows. The direction of the police officer to the extent he directed the petitioners not to erect any construction on the plot is hereby quashed. The parties are free to approach the Executive Magistrate before whom the s.144 proceedings are pending. The private respondents are free to approach the Civil Court seeking appropriate relief. Needless to say that if they approach the Civil Court, then such Court shall consider their grievances uninfluenced by anything in this order. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.) sh