Manoranjan Ghosh And Ors. vs State Of West Bengal And Ors.

on 11 August, 2006

Calcutta High Court Calcutta High Court Manoranjan Ghosh And Ors. vs State Of West Bengal And Ors. on 11 August, 2006 Equivalent citations: 2006 (4) CHN 847 Author: D Datta Bench: D Datta JUDGMENT Dipankar Datta, J. 1. The petitioners claim to be owners of certain plots of land, particulars whereof have not been mentioned in the body of the petition. Copies of two registered deeds of sale have been annexed to the petition which reveal that plot Nos. 4730, 4732, 4739 and 4738 are the properties mentioned in the Schedule thereto. The open space in front of the residential houses of the petitioners, it is alleged, belongs to Barochandghar Gram Panchayat. Such open space is being used by the petitioners for ingress to and egress from their residential house. It is the further allegation of the petitioners that one Ram Chandra Roy, respondent No. 11 set up a medicine shop and extended shop rooms one after another on the space in front of the residential house of the petitioners and thereby disturbed the ingress and egress of the petitioners. Despite protest made by the petitioners, the Panchayat authority did not take any step to ameliorate their grievance. 2. Feeling aggrieved by such action of the said Ram Chandra Roy, the petitioners instituted a civil suit in the Court of the learned Civil Judge, Krishnanagar, 1st Court, Nadia being Title Suit No. 101 of 2002. In connection with the said suit, an application for interim relief was taken out praying for a direction upon the concerned authority to render protection to the petitioners. Admittedly, no order of injunction was passed by the Civil Court and the said civil suit is pending. 3. The aforesaid facts and circumstances in the background, the petitioner No. 7 made a representation to the Superintendent of Police, Nadia, stating that disputes and differences having arisen between the parties, the private-respondents herein have threatened the petitioners with dire consequences. The same was also intimated to the Rural Outpost, Mira in G.D. No. 1110/05 dated 29.7.2005. However, the police failed to render any assistance to the petitioners. 4. In the present petition, the petitioners have alleged inaction on the part of the police authorities to maintain public peace and tranquillity. The petitioners have also alleged inaction of the other respondent authorities to take action in accordance with the relevant provisions of the West Bengal Highways Act, 1964. The Writ Court has been approached by filing the present petition without, however, claiming any relief against the police. Prayer (a) of the petition is set put below: (a) Issue a writ in the nature of mandamus commanding the respondents, their servants, subordinates and agents to remove the structure raised by the respondent Nos. 11 to 15 in Plot Nos. 4732, 4730, 4739 and 4738 of Mouza Barochandghar, under Police Station Kaliganj, District Nadia and to take appropriate action against the respondent Nos. 11 to 15 for running their unlawful activities touching and concerning their said shop room and to dismantle those shop-rooms and to act in accordance with law. 5. When the writ petition was taken up for consideration, Mr. Biswas, learned Advocate for the petitioners prayed for direction upon the respondents to file their respective affidavits. 6. Mr. Chatterjee, learned Advocate for the State raised objection that the writ petition itself not being maintainable in law, it ought not to be entertained. 7. Being called upon to argue on the maintainability of the present petition, Mr. Biswas submitted that the petitioners having submitted a complaint in writing to the police against the private-respondents, it was the
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Manoranjan Ghosh And Ors. vs State Of West Bengal And Ors. on 11 August, 2006

duty of the police to act on the basis of the same and to provide protection to the petitioners. Having failed to act, the police have failed to discharge their statutory duties and a writ petition seeking orders to activate the police would be maintainable. He further submitted that the petition would be maintainable notwithstanding the fact that a suit is pending between the petitioners and the private-respondents. He has cited , Gulam Abbas v. State of U.P. and Ors. (Para 25). 8. Mr. Chatterjee in reply submitted that the petitioners have not claimed any relief in the petition against the police and hence no direction should be passed in this regard. He further submitted that the petitioners having availed the remedy of a suit apparently on self-same cause of action, it was not open to them to approach the Writ Court for an order to dislodge the private-respondents. 9. Having perused the averments contained in the petition and upon hearing the learned Counsel for the parties, this Court is satisfied that this writ petition ought not to be entertained and is liable to be dismissed without calling for affidavits for more reasons than one. 10. It appears from the petitioners own showing that a civil suit is pending between them and the respondent No. 11 and that the petitioners have failed to obtain interim protection. Question as to whether the respondent No. 11 has been unlawfully and illegally occupying any portion of land allegedly belonging to the petitioners or to the public authorities is yet to be determined. In the absence of any determination by the Civil Court with regard to right, title and interest of the parties in respect of the plots in question, it would be impermissible for this Court to adjudicate on the rights and obligations of the parties. Evidence is required to be taken by the Civil Court in order to come to a conclusion one way or the other. Certainly, the Writ Court cannot usurp the jurisdiction of the Civil Court or be its substitute. On this ground, the writ petition is liable to fail. 11. That apart, it is settled law that no one can pursue parallel remedies. Petitioners having approached the Civil Court for adjudication of the controversy raised before it, must await its decision. Claiming of relief substantially against the private-respondents through the machinery of the respondent authorities by filing a writ petition, particularly when the civil suit is pending, cannot be countenanced and the contention raised by Mr. Chatterjee in this regard is of substance. Reference in this connection may be made to a decision of the Apex Court , Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd. wherein writ petition filed during pendency of petitioner's appeal before statutory authority was held to be not maintainable. The petitioners having actually availed of the remedy provided by law, the present petition is clearly non-maintainable. 12. Although no relief has been claimed by the petitioners for activating the police to act on the basis of the representation submitted before the Superintendent of Police being Annexure P-3 to the petition, since the point has been urged before this Court the same is also taken up for consideration. 13. Law is well-settled that if on information to police about commission of offence no action is taken, a writ petition to compel police to take action does not lie and in such a case the remedy of the informant lies in filing a complaint before the Magistrate. Reference in this connection may be made to the decision of the Apex Court , All India Institute of Medical Sciences Employees' Union (Reg.) v. Union of India, wherein it has been held as follows: 4. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose
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Manoranjan Ghosh And Ors. vs State Of West Bengal And Ors. on 11 August, 2006

any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI. 14. The position of law as above has been reiterated in the later decisions of the Apex Court , Gangadhar Janardan Mhatre v. State of Maharashtra and 2006 C Cr. LR (SC) 11, Minu Kumari v. State of Bihar. In both Gangadhar and Minu Kumari (supra), Paragraph 4 of All India Institute (supra) has been extracted verbatim with the further observation that "it was specifically observed that a writ petition in such cases is not to be entertained." 15. The petitioners admittedly have not exhausted their rights as conferred on them by the Code of Criminal Procedure and hence the present petition is not maintainable. 16. This Court has taken note of the decision , P.R. Murlidharan v. Swami Dharmananda wherein the Apex Court appears to have carved out certain exceptional situations on the occurrence of which a person may be entitled to police protection by way of issuance of mandamus. 17. It has been held that: A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the Court is satisfied that there is a threat to his person and the authorities have failed to perform their duties.... A writ for 'police protection' so called, has only a limited scope, as, when the Court is approached for protection of rights declared by a decree or by an order passed by a Civil Court.... 18. The averments made by the petitioners in the petition with regard to their perception of threat to life and property are extremely vague. As has been held in Murlidharan (supra), protection in respect of property rights on the allegation that the police have remained inactive cannot be enforced by a writ. Only if there is a real threat to life and liberty of a person which is proved to the satisfaction of the Court, a mandamus would issue. However, having regard to the nature of pleading in the present petition and having due regard to the facts and circumstances of the case, this Court is unable to record its satisfaction that any case has been made out by the petitioners to persuade this Court to hold that there is a threat to life of the petitioners at the instance of the private-respondents. In such view of the matter no relief whatsoever can be granted to the petitioners. 19. This Court despite reading paragraph 25 of the decision in Gulam Abbas (supra) cited by Mr. Biswas in between lines, as well as the other paragraphs, has failed to ascertain its relevance to the facts and circumstances of the present case. That was a case dealing with enforcement of customary rights of a particular community for performing their religious rites, practices, observances and functions and it was held in paragraph 7 that if the said community could prove that they have existing or established customary rites to perform their religious ceremonies and functions on the plots in question and they have been illegally deprived of the same by Executive Officers at the behest of the respondent community, relief sought by them for enforcement of such customary rights would have to be entertained and considered on merits. The ratio of the said decision cannot have any manner of application in a case of the present nature and is thus distinguishable.
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Manoranjan Ghosh And Ors. vs State Of West Bengal And Ors. on 11 August, 2006

20. The writ petition therefore fails and is dismissed. 21. There shall, however, be no order as to costs. 22. Xerox certified copy of the judgment, if applied for, be furnished to the learned Advocates for the parties expeditiously.

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