Sudipta Bose vs The State Of West Bengal & Ors
2022 Latest Caselaw 5598 Cal

Form No. J(2).
Item No.09

           IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE


                             HEARD ON: 18.08.2022

                         DELIVERED ON: 18.08.2022

                                  CORAM:

        THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                          W.P.A. 3314 of 2018
                                  With
                   I.A. No. CAN 1 of 2020 (not in file)
                                  With
                   I.A. No. CAN 2 of 2021 (not in file)

                                Sudipta Bose

                                  VERSUS

                       The State of West Bengal & Ors.


Appearance:-
Mr. Biswaroop Biswas
Ms. Madhumita Patra
Mr. Gautam Das                    ....for the Petitioner

Mr. Haradhan Banerjee
Mr. Sudip Banerjee
Mr. Sanjoy Kr. Das              ......for the respondent no. 4

Mr. Amitesh Banerjee
Ms. Ipsita Baner             ... for the State


                                 JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. The petitioner has prayed for a writ in the nature of

mandamus to command the police authorities to provide

necessary police help/protection for construction of the

boundary wall by the petitioner surrounding his property.

2. The petitioner filed a suit for declaration of title and

for permanent injunction being Title Suit No. 73 of 2006

before the learned Civil Judge (Junior Division), 1st

Additional Court, Alipore. The learned trial Judge by a

judgment and decree dated February 21, 2014 passed a decree of

declaration of the plaintiff's title in respect of the suit

property and for permanent injunction. The petitioner claims

that the said decree, which was carried upto this Hon'ble

Court in second appeal stood confirmed as the second appeal

stood dismissed for default. The petitioner alleges that for

the purpose of protection of his property, he tried to

construct a boundary wall surrounding his property but the

private respondent is creating obstruction in raising the said

boundary wall.

3. The petitioner claims to have lodged a complaint before

the Officer-in-Charge, Parnasree Police Station alleging that

the members of the respondent/Club are creating obstruction in

the matter of raising boundary wall by the petitioner. The

petitioner alleges inaction on the part of the police

authorities in not granting protection for construction of the

boundary wall.

4. Mr. Haradhan Banerjee, learned advocate representing the

private respondent submits that the second appeal is still

pending before this Hon'ble Court after the same was restored

to its original file and number and the submission made by the

learned advocate for the petitioner that the said decree has

been confirmed upto this Hon'ble Court is not correct.

5. Mr. Banerjee submits that the decree of permanent

injunction can be executed in terms of the provisions of Order

XXI Rule 32 of the Code of Civil Procedure and this Court in

exercise of powers under Article 226 should not exercise its

jurisdiction in view of availability of alternative

efficacious remedy. He submits that there is a dispute with

regard to the demarcation and/or boundary line of the property

in question and as such, no direction can be passed upon the

police authorities to render assistance to the petitioner in

the matter of raising construction of boundary wall.

6. Mr. Amitesh Banerjee, learned senior counsel appearing

for the State submits that the police authorities can only

implement the orders passed by the Court but they lack

jurisdiction to decide any boundary dispute between the

private parties.

7. Heard the learned advocates for the parties. Perused the

materials on record. The petitioner obtained a decree of

declaration of title and for permanent injunction. The

operative portion of the decree dated February 21, 2014 passed

by the Civil Court in T.S. 76 of 2006 is set out hereunder:

"It is ordered and decreed that the suit be and the same is decreed on contest without cost.

The plaintiff do get a decree for declaration that plaintiff is the owner of suit property and the defendants have got no right, title and interest over the same as well as a decree of permanent injunction whereby the defendants are restrained from creating any disturbance in peaceful possession of the plaintiff in suit property and from performing any celebration and/or function therein."

8. The decreetal property is a piece and parcel of land

measuring about 3(three) cottahs be the same a little more or

less lying and situated in Dag No. 96 under Khatian No. 49,

Mouza-Ram Narayan Taluk, J.L. No.-4, Touzi No.-345, being

scheme Plot No. -IX formerly under South Suburban Municipality

at present under Kolkata Municipal Corporation under Ward No.

129, being Premises No. 251, Parui Kancha Road, P.S.-Behala,

Kolkata-700061. The suit property, as it would appear from the

decree is a vacant land, which is butted and bounded on three

sides by house of several owners and on the Western side by

the Corporation Road. The Civil Court passed a decree for

permanent injunction restraining the defendants from creating

any disturbance in peaceful possession of the suit property

and from performing any celebration and/or any function

therein. The construction of the boundary wall was not the

subject matter of the dispute in the civil suit. The

petitioner has not prayed for implementation of the decree for

permanent injunction through police help.

9. The police authorities cannot decide the extent of an

immovable property which is a vacant land measuring about 3

cottahs more or less. Before the petitioner can construct the

boundary wall surrounding the property in question, the exact

boundary line of the property on all sides of the property is

to be ascertained through which the boundary wall is to be

constructed. Even if the claim of the petitioner is accepted

that the decree of declaration of title and permanent

injunction passed by the Civil Court has attained finality,

the petitioner cannot be equipped with an order of police

protection by this Court for construction of boundary wall

until and unless the boundary line of the property is fixed by

the competent authority. The police authority has not been

vested with such power to ascertain either the extent of the

property of the petitioner or its boundary line. The right of

the petitioner to construct boundary wall do not get

crystallised until the boundary line of the said property is

finally ascertained.

10. This Court under Article 226 of the Constitution of India

can direct the police authorities to perform the duties vested

upon them by the statute. Empowering the police authority to

fix the boundary line of the property through which the

boundary wall will be constructed will lead to disastrous

result.

11. In view thereof, this Court is of the considered view

that the petitioner is not entitled to any order from this

Court allowing him to raise construction surrounding his

property with police help.

12. Mr. Biswas, learned advocate appearing for the petitioner

places reliance upon a decision of the Hon'ble Supreme Court

of India in the case of P.R. Murlidharan & Ors. vs. Swami

Dharmananda Theertha Padar & Ors. reported at (2006) 4 SCC 501

in support of his contention that a writ for police protection

is maintainable for protection of the rights declared by a

decree or by an order passed by the Civil Court. The decree

passed by the Civil Court is for declaration of title and for

permanent injunction restraining the defendants from causing

any obstruction in the possession of the property of the

petitioner.

13. The petitioner has not obtained any decree from the Civil

Court for the purpose of raising boundary surrounding the

property. The right of the petitioner to raise a boundary wall

surrounding the property and the demarcation of the said

property and its boundary line has not been crystallised by

the said decree. Therefore, the said decision is of no

assistance to the petitioner in the instant case.

14. Mr. Biswas further referred to the decision of the

Hon'ble Supreme Court in the case of Howrah Mills Co. Ltd. &

Anr. Vs. Md. Shamin & Ors. reported at (2006) 5 SCC 539 in

support of his submission that the writ Court can direct the

police authorities to give necessary protection to protect his

property. The Hon'ble Supreme Court in the said decision

granted protection to the petitioner company to repair or

renovate its boundary wall and also for construction of

separate boundary walls for the plot proposed to be sold under

the supervision of the BIFR. The Hon'ble Supreme Court held

that the assignees of undivided shares from a co-owner will

also be benefitted if the property is protected from

trespassers. The said decision is distinguishable on facts and

is, therefore, not applicable to the case on hand.

15. Mr. Biswas also relied upon an order dated June 14, 2022

passed by a Hon'ble Division Bench in F.M.A. 1218 of 2009 with

I.A. No. CAN 5 of 2022 in the case of Sri Nanigopal Das vs.

Sri Debabrata Bhattacharya & Ors.in support of his contention

that the writ Court can direct the police authority to put a

party in possession of an immovable property.

16. In Nanigopal Das (supra) the possession of decreetal

property was delivered in favour of the writ petitioner in

execution of a decree. The writ petitioner/respondent no.1 in

the mandamus appeal was dispossessed forcibly by the appellant

and the said room was locked. The Hon'ble Division Bench after

observing that the possession of the room was handed over on

the basis of an order passed in an execution case refused to

interfere with the order passed by the Hon'ble Single Judge

wherein the police authority was directed to put the writ

petitioner back in possession. The decision in Nanigopal Das

(supra) is distinguishable on facts and as such is not

applicable to the case on hand.

17. The issue of police inaction arises only if the police

authorities fail and/or neglect to perform their statutory

duties. This Court is of the considered view that the writ

petitioner has failed to make out any case of failure on the

part of the police to perform their statutory duties.

18. For the reasons as aforesaid, the writ petition along

with the connected applications I.A. No. CAN 1 of 2020 (not in

file) and I.A. No. CAN 2 of 2021 (not in file) stand

dismissed. It would be open to the petitioner to approach the

appropriate forum in accordance with law for appropriate

reliefs.

19. There shall be, however, no order as to costs.

20. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

Pallab, AR(Ct.)