Zalba vs The State Of West Bengal & Ors
2023 Latest Caselaw 1052 Cal

08.02.2023
 sayandeep
 Sl. No. 14
 Ct. No. 05




                                   WPA 29077 of 2022

              Mr. Jose Antonio Zalba Diez Del Corral @ Jose Antonio
                                      Zalba
                                     -Versus-
                           The State of West Bengal & Ors.


                    Mr. Jose Antonio Zalba Diez Del Corral
                                             ......petitioner in-person
                    Mr. Subhabrata Datta
                    Mr. Sanatan Panja
                                                       .....for the State
                    Ms. Juin Dutta Chakraborty
                    Mr. Debasish Kundu
                                         ......for the respondent No. 2

Mr. Siddhartha Lahiri Mr. Debraj Dutta Ms. Samira Grewal

Mr. Ishan Saha Mr. Asish Kr. Mukherjee Mr. Saurabh Prasad

The writ petitioner appearing in-person is a

Spanish citizen and resides in Shantiniketan and

Kolkata. The petitioner seeks a Mandamus on the

respondent No. 3/The Additional District Judge, 10th

Court, Alipore to hear an application filed by the

petitioner under Section 340 of the CrPC before hearing

the application filed by the petitioner under Section 25

of the Guardians and Wards Act, 1890.

The brief facts as would appear from the

submissions of learned counsel appearing for the

private respondent No. 4, The Additional District

Judge/respondent No. 3 and the Registrar General,

High Court, Calcutta/respondent No. 2 are that the

petitioner filed both the application for custody under

the Guardians and Wards Act, 1890 as well as the

application under Section 340 of the CrPC. The dispute

is essentially a custody battle between the petitioner

and the private respondent. The records further show

that the Supreme Court passed an order on 11th

November, 2022 on an application made by the

petitioner, directing the Trial Court to finally decide the

application for custody on or before 28th February,

2023.

This Court is informed that the application was

finally heard yesterday, i.e., 7th February, 2023 and

reserved for Judgment. The Judgment is to be delivered

on 13th February, 2023.

The writ petition is not maintainable on at least

three grounds.

First, no person who otherwise has locus to

approach a writ Court can seek a Mandamus on a

judicial officer/subordinate judiciary to hear a certain

application. This can only be done under Article 227 of

the Constitution of India which gives the High Court

certain powers of superintendence over all Courts.

The writ petition is also not maintainable since

the subject matter clearly arises out of a private civil

dispute between the petitioner and the respondent No.

4. There is nothing in the writ petition to suggest that

the State is a necessary party or has caused infraction

of the rights granted to the petitioner under Part-III of

the Constitution as mandated under Article 226(1) of

the Constitution.

Further, the writ petition has become infructuous

since the Trial Court reserved the application for

custody/under the provisions of the Guardians and

Wards Act, 1890 for judgment yesterday. This must be

read as compliance of the order of the Supreme Court

directing the Trial Court to finally decide the matter by

28th February, 2023.

Further, a co-ordinate Bench on 15th September,

2022 in a civil revisional application shows that the

petitioner had sought for setting aside of an order of the

ADJ granting stay of the application filed under the

1890 Act.

Hence the prayer sought now is clearly contrary

to the stand taken by the petitioner before the co-

ordinate Bench.

The above reasons persuade this Court to hold

that the subject matter of the writ petition does not

come within Article 226 (1) of the Constitution. WPA

29077 of 2022 is accordingly dismissed without any

order as to costs.

Needless to say, the petitioner can avail of other

remedies available to the petitioner before the civil

forum if the petitioner is so advised including before the

Trial Court.

(Moushumi Bhattacharya, J.)