Calcutta High Court (Appellete Side)
Bhaben Mandal vs The State Of West Bengal & Ors on 27 September, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 22146 of 2024
Bhaben Mandal
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Sanjib Kumar Mukhopadhyay
Mr. Timir Kanti Biswas
Ms. Aparupa Bhattacharya ....advocates
For the Respondent
nos. 5 and 6 : Mr. Falguni Majhi .....advocate
For the State: :Ms. Jhuma Chakraborty
Ms. Arpita Mondal ....advocates
Heard on : 27.09.2024
Judgment on : 27.09.2024
Hiranmay Bhattacharyya, J.:-
1. Affidavit of service filed in Court is taken on record.
2. The petitioner claims to be the owner of a shop room by virtue of a Deed of
Conveyance dated July 21, 2009. According to the petitioner, his name
has been duly recorded in the Record of Rights. The petitioner started
running business from the said shop room under the name and style "M/s.
Shree Shree Gopalchander Rakomari Khelaghor" and engaged the 5th and
6th respondents as his employees. The petitioner claims that due to his
illness, he could not carry on the day to day affairs of the business for a
certain period and was completely dependent upon 5th and 6th respondents
for running the business from the said shop room. Taking advantage of
such situation, the 5th and 6th respondents have taken control of the
business and the shop room and is not allowing him to even enter into the
shop room.
3. The petitioner approached this Court praying for a direction upon the
respondent authorities to ensure absolute physical possession of the house
building and the shop room from the clutches of the 5th and 6th
respondents.
4. The learned advocate for the petitioner submits that the petitioner has
been forcefully ousted from his shop room by the 5th and 6th respondents
and seeks a mandamus to be issued commanding the police authorities to
evict the 5th and 6th respondents from the shop room.
5. Learned advocate for the private respondent submits that the petitioner
has instituted a suit for recovery of possession, mandatory and permanent
injunction against the 5th and 6th respondents herein being T.S. No. 38 of
2021, which is pending before the learned Civil Judge (Junior Division), 2nd
Court at Burdwan. The learned advocate places reliance upon a decision
of the Hon'ble Supreme Court in the case of Roshina T. Vs.Abdul Azeez
K. T. & Ors. reported in AIR 2019 SC 659 in support of his contention
that a claim regarding ownership and possession of an immovable property
can only be decided by the Civil Court and the writ petition under such
circumstances is not maintainable.
6. The learned advocate for the petitioner places reliance upon a decision of
the Hon'ble Supreme Court in a case of Maria Margarida Sequeira
Fernandes & Ors. Vs. Erasmo Jack De Sequeira (Dead) through LRS.
reported at (2012) 5 SCC 370 in support of his contention that the
possession of a servant or agent in respect of a property is that of his
master or principal and they cannot claim to remain in possession of the
said property thereby denying the right of the lawful owner.
7. Learned advocate for the State submits that the police authorities have
already taken steps and have submitted a prosecution under Section
107/116(3) of the Code of Criminal Procedure being Jamalpur P.S. N.C.R.
No. 195 of 2024 dated March 24, 2024. The report of the Inspector-in-
Charge dated September 16, 2024 is taken on record.
8. After going through the averments made in the writ petition, this Court
finds that the writ petitioner alleges that he has been forcibly ousted by a
person from an immovable property without due process of law. Such
person does not fall within the definition of State under Article 12 of the
Constitution. In effect, the petitioner has sought for an order of restoration
of possession of an immovable property from a private party in this writ
petition.
9. The petitioner has already approached the Civil Court praying for recovery
of possession of the shop room, which is the subject matter of dispute in
this writ petition. The question as to who is the owner of the immovable
property more particularly the shop room, as to how the private
respondents came into possession, whether the private respondents have
any legal right to remain in possession and to carry on business from the
shop room etc. are some of the materials questions which requires an
adjudication by trial on evidence in the pending civil suit.
10. In Roshina T. (supra) the Hon'ble Supreme Court reiterated that a regular
suit is the appropriate remedy for settlement of disputes relating to
property rights between the private parties. The remedy under Article 226
of the Constitution shall not be available except where violation of some
statutory duty on the part of a statutory authority is alleged. It was further
held that the High Court cannot allow its Constitutional jurisdiction to be
used for deciding disputes for which remedies under general law, civil or
criminal are available. It was further held that it is not intended to replace
the ordinary remedies by way of a civil suit or application available to an
aggrieved person. The jurisdiction under Article 226 being special and
extraordinary should not be exercised casually or lightly on mere asking by
the litigant.
11. The Hon'ble Supreme Court further held that an application under Articles
226/227 of the Constitution of India for grant of relief for restoration of
possession of an immovable property was not maintainable and the same
ought to have been dismissed in limini as not been maintainable. The
Hon'ble Supreme Court further observed that the High Court ought to have
declined to entertain the writ petition in exercise of Extra Ordinary
Jurisdiction under Articles 226/227 of the Constitution of India for grant
of reliefs in the nature of restoration of possession of an immovable
property.
12. The aforesaid decision squarely applies to the facts of the case on hand.
13. In Maria Margarida Sequeira Fernandes (supra), the caretaker filed a suit
for injunction against the true owner. In the said suit the plaintiff did not
claim any title over the suit property and it was established beyond doubt
that the plaintiff/ respondent before the Hon'ble Supreme Court was only a
caretaker. On such facts it was held that the caretaker or agent holds
property of the principal only on behalf of the principal and he acquires no
right or interest whatsoever for himself in such property irrespective of his
long stay or possession. The said decision is clearly distinguishable on
facts. That apart, in the said reported case a suit for injunction was filed
before the Civil Court. For such reason the said decision cannot come to
the aid of the petitioner. The police authority is not vested with the power
or authority to decide the aforesaid civil disputes between the private
parties. The police authority is only duty bound to implement the order of
civil court.
14. The writ petitioners failed to make out any case of violation of statutory
duty on the part of the statutory authorities. This Court accordingly holds
that the reliefs claimed is not legally permissible in a writ petition.
15. For all the reasons as aforesaid, this Court is not inclined to grant any
relief in favour of the petitioner.
16. With the above observations and directions, the writ petition stands
disposed of.
17. It is, however, made clear that this Court has gone into the merits of the
claim and counter-claim of the private parties and the findings recorded
hereinbefore are only for the purpose of supporting the ultimate conclusion
and the same shall not prejudice the private parties in the pending civil
suit.
18. There shall, however, be no order as to costs.
19. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
