Nirmala Samanta vs The State Of West Bengal & Ors
2023 Latest Caselaw 5113 Cal

Form No. J.(2)
Item No.3


                 IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                          CIVIL APPELLATE JURISDICTION
                                 APPELLATE SIDE

                              HEARD ON: 17.08.2023

                            DELIVERED ON: 17.08.2023
                                  CORAM:
                    THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
                                    AND
             THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                                 F.M.A. 872 of 2021
                                         With
                               I.A. No. CAN 1 of 2021

                                Nirmala Samanta
                                       Vs.
                         The State of West Bengal & Ors.

Appearance:-

Mr. Golam Mastafa
Mr. T. S. Samanta               .........for the appellant

Mrs. Nirmala Samanta            .........appellant in person




                                    JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)

1. This intra-Court appeal filed by the writ petitioner is directed against the

order dated 4th February, 2021 in W.P.A. 8166 of 2020. The appellant filed

the writ petition praying for a direction upon the respondent nos.2 and 3 to

take action against the 4 th respondent on the basis of the complaint lodged

by the appellant and thereby remove the obstruction in front of the land of

the appellant in Plot No.47/2018 and 47/2019 within Mouza - Bamunia,

Police Station - Mahisadal, District - Purba Medinipur.

2. The learned writ Court considered the submissions made by the appellant

as well as the private respondents, who appeared to be co-owners of the

property in question. After considering the submissions and the documents

placed on record, the Court came to the conclusion that the dispute relates

to title of the property and consequential reliefs. Therefore, the Court

observed that it is beyond the scope of the writ petition to enter into the

merits of such disputed questions of fact, which require examination of

documentary evidence and other materials. Therefore, the writ petition was

disposed of by granting liberty to the petitioner and the private respondents

to approach the competent civil Court with a grievance, as raised in the

writ petition and if so approached, the civil Court was directed to decide the

same and grant interim orders, if it deems fit without being influenced in

any manner with the observations made by the learned writ Court.

3. Aggrieved by such order, the appellant has filed the present appeal. The

appellant is appearing in person and also assisted by a learned advocate.

We have elaborately heard the submissions made by the appellant and the

learned advocate, who is assisting the appellant. The appellant would

contend that after the demise of her husband, she has been temporarily

residing in Behala. However, when she came to the property, the 4 th

respondent is obstructing her free ingress and egress into the property.

Therefore, the appellant had approached the respondent nos.2 and 3 by

way of a complaint alleging that no appropriate action has been taken on

those complaint. On the basis of such complaint, the writ petition was

filed.

4. The learned advocate assisting the appellant, who is appearing in person

submitted that the appellant has a natural right to enter into her property

through the National Highway.

5. Admittedly, the issue as to whether the appellant has a right to ingress and

egress to a particular piece of land to reach her property is a civil matter in

which a writ Court cannot interfere nor the police authorities can give any

declaratory relief to the appellant and this is precisely the reason why the

learned writ Court had granted liberty to the appellant to approach the civil

Court, which liberty the appellant has not availed till date. However, in the

event, the 4th respondent has committed a criminal offence and a complaint

is lodged by the appellant to the 3 rd respondent/police, then obviously the

said complaint ought to be enquired into and it will be well open to the

police to take into consideration all the materials, issue summons to the 4 th

respondent, conduct an enquiry and then proceed to take a decision in

accordance with law. In the event, the 3 rd respondent/police comes to the

conclusion that the matter is entirely of a civil nature and there is no

criminal overt act against the 4 th respondent, then an appropriate report

has to be drawn and served on the appellant and if aggrieved, the appellant

can invoke the other remedies available under the Code of Criminal

Procedure.

6. In the light of the above, the appeal and the connected application are

disposed of by preserving the liberty granted by the learned Single Bench to

both the writ petitioner as well as the 4 th respondent to approach the

competent civil Court. In fact, the learned writ Court has also made

observation that if such remedy is availed, the civil Court can grant

appropriate interim orders by considering the matter on merits.

7. The appellant is directed to lodge a fresh complaint before the 3 rd

respondent/police along with a copy of this judgement and order. On

receipt of the said complaint, the 3rd respondent/police shall cause an

enquiry to be done after issuance of summons/notice to the appellant and

the 4th respondent and conduct a spot inspection of the area and thereafter

proceed to take a decision in accordance with law.

8. The above direction be complied with by the 3 rd respondent/police within a

period of three weeks from the date on which the complaint is lodged by the

appellant.

9. No costs.

10. Urgent photostat certified copy of this order, if applied for, be furnished to

the parties expeditiously upon compliance of all legal formalities.

(T.S. SIVAGNANAM) CHIEF JUSTICE

I agree.

(HIRANMAY BHATTACHARYYA, J.)

Pallab/KS AR(Ct.)