Bombay High Court
Mujibur Rehman Haji Israr Alam ... vs The State Of Maharashtra And Ors on 31 March, 2021
Bench: S.S. Shinde, Manish Pitale
(908)-WP-347-21.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.347 OF 2021
Mujibur Rehman Haji Israr Alam Siddiqui
Aged about 48 years, Occ: Business,
Residing at Flat No.902, 9th floor,
'D' Wing, Sugra Park, Pathan Wadi,
Rani Sati Marg, Malad (E),
Mumbai-400 097 ..Petitioner
Versus
1. The State of Maharashtra
Through the Public Prosecutor,
High Court, Mumbai.
2. The Sr. Inspector of Police,
Nagpada Police Station, Nagpada,
Mumbai-400 008.
3. Ghanshyam Patil
Police Inspector, Nagpada Police
Station, Nagpada, Mumbai-400 008.
4. Parvez Iqbal S/o Abdul Salam,
Age not known, Occ: Business,
having address at opp. Shop No.7, Gr. Floor,
Mujibur Rehman S/o Haji Israr Alam
Building 28/32, Shuklaji Street,
Mumbai-400 008.
5. Arif S/o Matlub Ansari,
Age not known, Occ: Business, having
address at opp. Shop No.7, Gr. Floor,
Mujibur Rehman S/o Haji Israr Alam
Building, 28/32, Shuklaji Street,
Mumbai-400 008. ..Respondents
Mr. B. P. Pandey a/w Ms. Ridhima Mangaokar, Mr. Aayush Tiwari i/by Vivek
Pandey, Advocates for the Petitioner.
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Mrs. S. D. Shinde, APP for the Respondent - State.
Mr. J. K. Shah a/w Mr. A. G. Manurkar, Mr. Akash Vikram Singh i/by RJ Law
for Respondent Nos.4 & 5.
CORAM : S. S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 18.02.2021
PRONOUNCED ON : 31.03.2021
JUDGMENT (Per Manish Pitale, J.)
1. The petitioner herein is aggrieved by alleged failure on the part of
respondent No.2 - Senior Inspector of Police of Nagpada Police Station in
Mumbai in taking cognizance of complaints submitted by the petitioner
whereby according to him cognizable offences committed by and on behalf of
respondent Nos.4 and 5, were brought to the notice of respondent No.2. The
petitioner also seeks a direction to the said respondents for providing police
protection and assistance to the petitioner in view of alleged threats to his life
and property.
2. The petitioner claims that he had submitted complaints on
24.01.2020, 27.10.2020 and 21.11.2020 before the respondent No.2 stating that
he was being harassed by certain persons posing as CBI officers and that all this
was at the behest of respondent Nos.4 and 5 who were preventing the petitioner
from entering certain shops in a building wherein the predecessor of respondent
No.4 was a tenant and now the said respondent is in possession of certain
portion as a tenant. According to the petitioner, despite an eviction decree in
respect of shop No.8 in a building and execution of such decree in favour of the
petitioner, the common passage leading to the said shop and the adjoining shop
was being obstructed by the respondent Nos.4 and 5 so as to create nuisance not
only for the petitioner but other tenants using the common passage in the said
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building. It is the case of the petitioner that despite favourable orders being
passed by civil courts in his favour and execution of aforesaid decree,
repeatedly obstructions were being created by respondent Nos.4 and 5, to which
the respondent No.2 and other authorities were turning a blind eye. In this
backdrop, the petitioner has approached this Court seeking aforementioned
reliefs.
3. Mr. B. P. Pandey, learned counsel appearing for the petitioner
vehemently submitted that the respondent No.2 had failed to act as per the
mandate of law and the provisions of the Code of Criminal Procedure
("Cr.P.C."), particularly section 154 thereof in failing to register offences despite
repeated complaints submitted by the petitioner. According to the petitioner,
this was in violation of settled position of law recognized by the Hon'ble
Supreme Court in the case of Lalita Kumari Vs. Government of Uttar
Pradesh and Ors., (2014) 2 SCC 688. It was submitted that the private
respondents had no right to obstruct the use of common passage by the
petitioner and tenants in the said building, particularly when there were orders
passed by the civil courts restraining them from creating such obstructions. It
was submitted that the respondent No.2 had utterly failed to take action in terms
of the provisions of Cr.P.C. and that therefore, the petitioner was constrained to
approach this Court invoking writ jurisdiction. Attention of this Court was
invited to a decree passed in favour of the petitioner in respect of shop No.8
situated in the aforesaid building as also the fact that the said decree stood
executed. It was submitted that despite the decree being executed the petitioner
was unable to enjoy the possession of the aforesaid shop and access to the
adjoining shop No.7 because of repeated obstructions illegally committed by the
private respondents. Learned counsel invited attention of this Court to a map at
Exh.O to support the aforesaid contentions. Learned counsel for the petitioner
sought appropriate orders from this Court in this context.
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4. Mr. J. K. Shah, learned counsel appearing for the respondent
Nos.4 and 5 vehemently opposed the contentions raised on behalf of the
petitioner. It was submitted that in so far as allegations against the said
respondents were concerned, the same were baseless and that the petitioner was
guilty of suppressing facts from this Court. It was submitted that when the
petitioner had indulged in suppression of material facts from this Court and
petitioner had approached with unclean hands, the writ petition deserved to be
dismissed at the outset. In this context, learned counsel for respondent Nos.4
and 5 submitted that the petitioner had suppressed the fact that there was
another suit pending between the parties, which pertained to common area in the
said building, which had been rented out to the predecessor of the said
respondent wherein the respondent No.4 was now a tenant. It was submitted
that when the petitioner himself filed the suit for eviction of respondent No.4
from the said common area, there was no question of seeking any police help
for removing the respondent No.4 from the said common area. Learned counsel
relied upon judgment of the Hon'ble Supreme Court in the case of K. D.
Sharma Vs. Steel Authority of India Limited and others, (2008) 12 SC 481
to claim that the writ petition deserved to be dismissed only on the ground of
suppression of the aforesaid fact in the writ petition.
5. Learned counsel for the respondent Nos.4 and 5 further submitted
that in so far as the grievance of the petitioner regarding failure of the
respondent Nos.1 to 3 in registration of offence was concerned, there was an
alternative remedy available with the petitioner in the form of initiating
appropriate proceedings under section 156(3) of the Cr.P.C.. It was submitted
that the petitioner could not have filed the present writ petition without
exhausting the said remedy available to him. Even if a cognizable offence was
made out under section 154 of the Cr.P.C., on the alleged failure of respondent
Nos.1 to 3 to register the FIR, the petitioner ought to have filed complaint under
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section 156(3) of the Cr.P.C.. Having failed to do so, the petitioner was not
entitled to invoke writ jurisdiction of this Court.
6. In support of the said proposition, learned counsel for the
respondent Nos.4 and 5 relied upon Full Bench judgment of this Court in the
case of Panchbhai Popatbhai Butani and Ors. Vs. State of Maharashtra and
Ors., 2010(1) Mh.L.J. 421.
7. Mrs. S. D. Shinde, learned APP appeared on behalf of respondent
Nos.1 to 3 and submitted that alternative remedy was available with the
petitioner and he ought not to have rushed to this Court invoking writ
jurisdiction.
8. Having heard learned counsel for the rival parties, there are two
aspects that deserve consideration in this writ petition. Firstly, the contention of
the petitioner regarding failure on the part of the respondent Nos.1 to 3 to take
appropriate action against respondent Nos.4 and 5 despite the illegal obstruction
created by them for use of common passage in the aforesaid building and in that
context the alleged suppression of facts in the writ petition. Secondly, the
contention of the petitioner that respondent No.2 ought to have registered
offences in view of the three complaints submitted in writing by the petitioner
and in that context availability of alternative remedy under section 156(3) of the
Cr.P.C..
9. As regards the first contention, it would be necessary to deal with
the aspect of alleged suppression of the facts on the part of the petitioner while
seeking to invoke writ jurisdiction. It is the specific contention of respondent
Nos.4 and 5 that while approaching this Court and making allegations against
the said respondents regarding illegal obstruction in use of common passage, the
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petitioner did not state the fact that he had already initiated a suit for eviction
concerning the said common passage against respondent No.4 before the
competent civil Court. Attention of the Court was invited to rent receipt issued
in favour of predecessor of respondent No.4 to claim that when the respondent
No.4 was in possession of the said common passage as a tenant, there was no
question of an illegal obstruction being committed, particularly when a suit for
eviction was already pending before the competent Court. The respondent
Nos.4 and 5 specifically annexed a copy of the said suit bearing T.E. Suit
No.115/143 of 2012 pending before the Court of Small Causes at Mumbai.
10. A perusal of the writ petition would show that although a copy of
the said plaint has not been annexed to the writ petition, a reference to the same
has been made in the documents filed with the writ petition. The petitioner has
annexed a map of the relevant portion of the building at Exh.O to show the
difficulty being faced by him in so far as the use of common passage is
concerned and in the said map the common passage is shown distinct from the
common area in respect of which the respondent No.4 claims to be a tenant and
in respect of which the aforesaid suit bearing T.E. Suit No.115/143 of 2012 has
been filed. The thrust of the contentions raised on behalf of the petitioner is that
respondent Nos.4 and 5 are obstructing use of common passage by the petitioner
and tenants in the said building by blocking access to shop No.7 and other shops
in the building. In that context, the petitioner has referred to suit bearing RAE
Suit No.75/122 of 2012 concerning shop No.8 in which decree was passed,
which also stood executed. The petitioner has placed reliance on the said decree
in the context of the illegal obstruction allegedly being made by respondent
Nos.4 and 5. Therefore, it cannot be said that the petitioner suppressed facts
from this Court in order to mislead this Court while seeking to invoke writ
jurisdiction. Consequently, it cannot be said that the writ petition deserves to be
dismissed only on this ground. The judgment of the Hon'ble Supreme Court
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relied upon by the learned counsel for respondent Nos.4 and 5 in this context in
the case of K. D. Sharma (supra) is misplaced because in the said case, it was
held that writ petition ought to be dismissed when the petitioner makes false
statements or conceals material facts or misleads the Court while seeking relief.
We are of the opinion that such cannot be said to be the case in the present
matter and therefore the aforesaid contention is rejected.
11. As regards failure on the part of respondent Nos.1 to 3 in coming
to the aid of the petitioner in view of illegal obstruction being created by
respondent Nos.4 and 5 for use of common passage in the said building, it needs
to be examined as to whether there are orders passed by competent civil courts
in that regard, which are being flouted by the private respondents. In this
context, learned counsel appearing for respondent Nos.4 and 5 placed much
emphasis on rent receipt pertaining to common area executed in favour of
predecessor of respondent No.4, as also the fact that the petitioner has filed T.E.
Suit No.115/143 of 2012 regarding eviction of respondent No.5 from the said
common area, which is pending before the Court of Small Causes. There is no
doubt about the fact that such a suit has been indeed filed by the petitioner and it
is pending, but what is crucial is that the petitioner has not raised any grievance
in respect of the said common area, but he has raised grievance in respect of
common passage which leads to shop Nos.7 and 8 as also to other parts of the
building in which according to the petitioner, respondent Nos.4 and 5 have
created obstructions. In this regard, it is relevant to note that the other suit filed
by the petitioner in respect of shop No.8 bearing R.A.E. Suit No.75/122 of 2012
was decreed in favour of the petitioner. In the appeal, a conditional stay order
was passed, but since the respondent No.4 failed to abide by the conditions
imposed in such stay order, the decree stood executed and the petitioner came in
possession of shop No.8.
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12. In the said appeal, applications were filed by the petitioner as well
as respondent No.4. It is significant that the petitioner also filed a cross appeal
and that an application was filed by the petitioner in the said cross appeal
seeking relief in respect of obstructions created by respondent No.4 in use of
common passage. The Appellate Bench of the Small Causes Court heard
arguments on the aforesaid application filed on behalf of the petitioner bearing
Exh.34 and passed an order on 12.01.2021, specifically restraining the
respondent No.4 from causing any sort of obstruction or interference to the
common use and enjoyment of the petitioner and other tenants over the common
passage for shop Nos.7 and 8 in any manner whatsoever. In this order, the
Appellate Bench of the Small Causes Court has given findings against
respondent No.4 in respect of the said common passage. The Appellate Bench
has also taken note of the fact that the petitioner has filed the aforesaid separate
suit for eviction of the respondent No.4 from open space or common area which
was rented out to the predecessor of respondent No.4. Thus, it becomes evident
that the Appellate Bench of the Small Causes Court passed the said order
against respondent No.4 in respect of the common passage after taking into
consideration all the relevant facts. The said order operates against respondent
No.4 and in favour of the petitioner.
13. It is evident from the aforesaid material that competent civil court
has held in favour of the petitioner in respect of common passage as depicted in
the map at Exh.O and respondent No.4 stands specifically restrained from
raising any obstructions regarding use of the common passage. The petitioner
has been claiming that such obstruction is being illegally created by respondent
No.4 and 5, which has led to harassment and repeated complaints to the police
and yet no steps have been taken by the authorities for granting protection to the
petitioner or taking necessary steps in the matter. We are of the
opinion that the dispute regarding use of common passage may be of civil
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nature, but when competent civil courts have passed orders against respondent
No.4 which are being blatantly violated, the respondent Nos.1 to 3 are expected
to take appropriate steps for ensuring that rule of law prevails.
14. Learned counsel appearing for respondent Nos.4 and 5 was unable
to demonstrate as to why the respondent No.4 could claim any right of creating
obstruction in respect of use of the said common passage by the petitioner,
particularly when the Appellate Bench of the Small Causes Court passed
aforesaid order dated 12.01.2021, allowing the application of the petitioner at
Exh.34. Therefore, to that extent, the petitioner is justified in approaching this
Court seeking protection and assistance from respondent Nos.1 to 3, in respect
of use of the said common passage leading to shop Nos.7 and 8, particularly in
the face of favourable orders passed by the competent civil courts.
15. In so far as the second aspect of the matter is concerned, regarding
failure of respondent No.2 to register offences and initiating investigation upon
complaints lodged by the petitioner, we are of the opinion that the petitioner
ought to have exhausted the remedies available under the Cr.P.C., instead of
rushing this Court by invoking writ jurisdiction. A perusal of the complaints
dated 24.01.2020, 27.10.2020 and 21.11.2020, submitted by the petitioner
before respondent No.2 would show that they pertain to alleged threats given to
the petitioner by some persons claiming to be CBI officers, abusing in filthy
language and threats by respondent No.5 allegedly at the behest of respondent
No.4, as also alleged theft of electricity and other such grievances in respect of
shop No.8 in the aforementioned building. We are of the opinion that the
petitioner ought to have followed the procedure laid down in section 154(3) and
thereafter he could have initiated proceedings under section 156(3) of the
Cr.P.C., instead of rushing to invoke writ jurisdiction of this Court.
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16. In this context, learned counsel appearing for respondent Nos.4
and 5 are justified in relying upon judgment of this Court in the case of
Panchbhai Popatbhai Butani (supra). In the said judgment the scheme under
sections 154 and 156 of the Cr.P.C. has been elaborately discussed and it has
been laid down as to the manner in which an aggrieved person seeking to trigger
the criminal justice system needs to exhaust the steps under sections 154(1),
154(3) and then 156(3) of the Cr.P.C.
17. In view of the above, the writ petition is disposed of with the
following directions :-
A) Since the competent civil courts have passed orders against
respondent No.4 and in favour of the petitioner in respect of
use of common passage leading to shop Nos.7 and 8 in the
aforementioned building, the respondent Nos.4 and 5 are
directed to abide by such orders of the civil courts and
respondent Nos.1 to 3 are directed to ensure that the
respondent Nos.4 and 5 or any person at their behest does not
create any obstructions in the use of the common passage by
the petitioner.
B) The respondent Nos.1 to 3 are directed to ensure that
protection is provided to the petitioner against such
obstruction that may be attempted by respondent Nos.4 and 5
or any person on their behalf in respect of the said common
passage.
C) The respondent No.2 is directed to take decision on the
complaints submitted by the petitioner on 24.01.2020,
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27.10.2020 and 21.11.2020, within a period of two weeks
from today.
D) Depending on the decision taken by respondent No.2 on the
said complaints, if the petitioner has any grievance, he is at
liberty to exhaust the remedies under sections 154(3) and
156(3) of the Cr.P.C..
18. The writ petition is disposed of with the aforesaid directions.
[MANISH PITALE, J] [S. S. SHINDE, J]
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