Calcutta High Court (Appellete Side)
Samimara Khatun @ Bibi vs The State Of West Bengal & Others on 13 August, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Present :
The Hon'ble Justice:- Ashim Kumar Roy
W.P. No. 21788 (W) of 2011
Samimara Khatun @ Bibi
Vs.
The State of West Bengal & Others
For the Petitioner : Mr. Partha Pratim Roy
Mr. Sarbananda Sanyal
For the State : Mr. Saikat Chatterjee
For the Respondent No.5 : Mr. Pratip Kumar Chatterjee
Heard on : 03.07.2014
Judgment on : 13.8.2014
Ashim Kumar Roy, J. :
The writ petitioner claiming herself to be the lawful owner of a piece of land comprised in Plot No.3165 within Mouza
-Jhikarhati, Burwan, Murshidabad, has approached this court against police inaction alleging that although she is lawful owner of the land in question and the same is under her actual physical possession, occupation and user and she has been cultivating the said land, the private respondents no. 5 to 12, who are the local hooligans, are forcibly trying to obstruct cultivation work, even the persons whom the writ petitioner engaged for cultivation were assaulted with fists and blows and also threatened with dire consequences.
It is then contended by the learned advocate of the writ petitioner that she having no alternative filed a declaratory suit as regards to her right, title and interest over the suit property and for permanent injunction and in connection therewith an interim order of injunction has been passed by the court below restraining the private respondents from interfering with her peaceful possession and enjoyment of the suit property.
He further submitted in spite of such order of injunction the private respondents still obstructing the writ petitioner and her men to cultivate the land. They were being armed with deadly weapons threatened the writ petitioner and her men with dire consequences and even her men were physically assaulted and although the incident was reported to the local police station but police has not taken any action against them.
On the other hand, the learned counsel for the private respondent No.5 submitted that he is the bargadar of the land in question and already he has filed a bhag chas case for declaring him as bargadar in respect of the said land and the matter is pending before the Block Land and Land Reforms Officer, Burwan being Bhag Chas Case No.16 of 2011.
He further contended that the bhag chas case was instituted much before the institution of the suit by the writ petitioner and denied the truth of the allegations.
The learned counsel for the State in course of his submissions, first invited the attention of this court to the complaint in question and submitted that the allegations made therein does not constitute commission of cognizable offence and therefore by not registering FIR, police has not committed any mistake. He further submitted that the remedy if any available to the writ petitioner is to move the civil court against the alleged violation of injunction order. He submitted no case of police inaction has been made out and therefore this writ application is liable to be dismissed.
In reply, the learned counsel for the petitioner disputed the claim of the private respondent that he is the bargadar in respect of the land in question.
Heard the learned counsel appearing on behalf of the parties. Considered the respective submissions. Perused the materials on record.
Now, going through the complaint being "P-6" and "P- 7" together with the injury report, I find that there is only allegation of criminal intimidation and of causing hurt. Both are admittedly non-cognizable offence. Even assuming at the time of the incident, the respondents have fire arms in their possession that makes out a case for an offence punishable under Section 25(1)(a)(b) of the Arms Act, which is also a non-cognizable offence. Furthermore, for violation of any order of injunction passed in connection with a pending suit, the remedy of the writ petitioner available under the Code of Civil Procedure itself.
Thus, when no case of police inaction has been made out and when for violation of an injunction order passed by a civil court, the writ petitioner has an equally efficacious alternative remedy, this writ application stands dismissed and disposed of.
Urgent Xerox certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Ashim Kumar Roy, J.)