Rustom Khan vs The State Of West Bengal And Others
2022 Latest Caselaw 925 Cal

    48
01.03.2022
   TN



                           WPA No.14422 of 2021

                                 Rustom Khan
                                      Vs.
                        The State of West Bengal and others

                             (Via Video Conference)


             Mr. R. N. Mahato,
             Mr. A. S. Ray
                                                  .... for the petitioner

             Ms. Chama Mookherji,
             Ms. Manika Pandit
                                                      .... for the State

             Mr. Sukanta Das
                                            .... for the respondent no.4

Learned counsel for the petitioner submits that,

in the suit for declaration and permanent injunction

filed by the writ petitioner against the predecessor-in-

interest of the private respondent, an ex parte decree

was passed, thereby declaring that the petitioner has

right, title, interest and possession over the suit

property and granting permanent injunction

restraining the defendants, including the predecessor-

in-interest of the private respondent, from disturbing

the peaceful possession of the plaintiff, that is, the

present writ petitioner, in the suit property. The suit

property, inter alia, included plot no.557, which is also

a subject-matter of the present writ petition.

Learned counsel for the petitioner contends that

subsequently, at the instance of the private

respondent, a fresh suit was filed, thereby seeking

declaration of the private respondent's alleged title and

permanent injunction against the writ petitioner in

respect of the same plot.

Initially the private respondent obtained an ex

parte order of injunction against the writ petitioner,

which was subsequently vacated on the prayer of the

writ petitioner.

In spite of such scenario, the police authorities,

upon being approached by the petitioner, it is alleged,

are not granting adequate assistance to protect the

petitioner from cultivating the said plot.

Learned counsel appearing for the State-

respondent submits that, in view of the contradictory

orders and statements on record, the police was in a

quandary as to what to do. It is submitted that, even

apart from the ex parte injunction order passed in the

subsequent suit, a representation of the petitioner

itself indicated that the concerned Dag, that is, plot

no.557, had been wrongly recorded in the name of the

private respondent.

As such, it is submitted, in the absence of any

specific order being passed by the civil court or the

executing court, the police could not take any specific

action on the basis of the petitioner's grievance.

Learned counsel appearing for the private

respondent submits that the remedy of the petitioner

is before the executing court, by levying execution of

civil court's decree in the first suit.

In support of such proposition, learned counsel

for the private respondent cites Durga Prasad vs.

Naveen Chandra and others, reported at (1996) 3 SCC

300.

A perusal of the said judgment shows clearly

that the matter had gone up to the Supreme Court

against an order challenging the rejection of an

application regarding maintainability of an application

under Order IX Rule 13 of the Code of Civil Procedure

(CPC).

In such circumstances, the Supreme Court held

that the adequate remedies open to the appellant

under the CPC were a right of appeal under Section 96

or appeal under Order XLIII read with Section 104 or a

revision under Section 115 of the CPC.

Hence, in such circumstances, the Supreme

Court observed that the application under Article 226

of the Constitution of India was not maintainable in

the said case.

However, the facts of the said case and the

context of the ratio laid down therein are completely

different and distinct from the present case.

The writ court is not powerless to deal with

police inaction in the matter of affording protection to

citizens. Mere availability of an alternative remedy by

way of execution before the civil court does not operate

as a complete bar to the exercise of jurisdiction by the

writ court for ensuring the fundamental rights of

citizens of India as enshrined in the Constitution.

There is no specific provision in the

Constitution, under which the Civil Procedure Code is

a subordinate statute, preventing an aggrieved person

from approaching the writ court in the event of any

instance of police inaction.

The same is precisely the case in the instant

matter.

As of today, the petitioner's name has been

recorded in the records of right, as reflected from the

documents annexed to the writ petition, irrespective of

whatever the petitioner had previously written in his

representation, the latter being relied upon by learned

counsel for the State.

That apart, the ad interim ex parte injunction

passed against the petitioner in the second suit filed

by the private respondent has since been vacated on

the prayer of the writ petitioner.

Over and above, the civil court's decree passed

in the first suit instituted by the writ petitioner, which

was decreed against the predecessor-in-interest of the

private respondent, still remains in force.

Moreover, since it is the duty of the police to give

protection to citizens of India, there is no particular

reason as to why such ratio should not be extended to

a case where the petitioner is further strengthened by

a decree of the civil court, apart from having

fundamental rights under the Constitution of India.

As has been well-settled by the Supreme Court

in several judgments, which need not be repeated here

unnecessarily, the availability of an alternative remedy

is not an absolute bar to the exercise of jurisdiction by

the writ court under Article 226 of the Constitution of

India.

The present case is an exceptional one

inasmuch as the writ petitioner is armed with the

decree of the civil court and even the records of rights,

as annexed to the writ petition, which indicate that the

petitioner is in possession of the plot no.557 as well as

the other portions of the decretal property in the first

suit.

In such factual matrix, there is no reason why

the police should not extend adequate assistance to

protect the petitioner in cultivating the land-in-

question.

However, it would only be appropriate if the

petitioner pays the necessary costs for affording police

protection to the petitioner in so cultivating, since the

remedy of the petitioner, in view of the civil court's

decree, is in the nature of a civil right and not a mere

criminal infringement.

Insofar as the criminal infringement of the legal

rights of the petitioner is concerned, the police

authorities have taken adequate steps by initiating

proceedings under Section 107 of the Indian Penal

Code against both the parties, in view of the prevailing

circumstances in the locale.

WPA No.14422 of 2021 is, thus, disposed of by

directing the respondent no.3, that is, the Officer-in-

Charge of the Debra Police Station to grant adequate

police assistance to the petitioner in cultivating his

land, as per the petitioner's representation.

However, upon a legitimate bill being raised by

the police, as regards the necessary costs for granting

such police protection, the petitioner shall pay such

amount to the police authorities for the purpose of

getting the police help.

It is, however, made clear that the respective

rights and contentions of the private parties in the

pending (second) civil suit shall not be prejudiced by

any of the observations made herein and the civil

court will proceed with the hearing of the suit and to

adjudicate the same independently on its own merits

without being influenced by any of the observations

made herein.

Leave is granted to the petitioner to make a

specific, fresh application for police help before the

respondent no.3, disclosing specific details of about

how many days' and what nature of protection is

required by the petitioner in the context. Only if such

application is filed within three days by the petitioner,

the rest of this order will come into operation.

Otherwise, this order shall automatically stand

vacated, without further reference to this court.

The above order is passed independent and

irrespective of the fate of the pending title execution

case at the instance of the writ petition.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)