Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 507 (CAL)

KAMALA GUPTA v. STATE OF WEST BENGAL

2006-08-11

DIPANKAR DATTA

body2006
( 1 ) THE petitioner had approached this Court in its writ jurisdiction by filing W. P. No. 4963 (W) of 2006. It was the allegation of the petitioner in that petition that the Mutwalli of the mosque at 55, Biplabi Anukul Chandra street, Kolkata - 700 072 (respondent No. 9) was illegally raising construction in violation of the extant Building Rules and thereby affecting the air, light and ventilation of the premises of the petitioner and despite having complained to the Kolkata Municipal Corporation (hereafter the said Cor-poration)against such illegal construction, no steps had been taken by the said Corporation. ( 2 ) IT appears that W. P. No. 4963 (W) of 2006 has been disposed of by this hon'ble Court on 26. 4. 2006 with a direction upon the Executive Engineer, borough No. VI, Building Department of the said Corporation to consider the petitioner's grievance as contained in Annexure P-4 to the petition and to dispose of the same by passing a reasoned order after giving an opportunity of hearing to her as well as the Mutwalli within a period of 8 weeks from date of communication of the order. It was further directed that the mutwalli would be restrained from raising any "further construction in the concerned mosque without any valid sanction plan". ( 3 ) DURING the pendency of the said writ petition, the petitioner on 17. 3. 2006 has preferred the present petition. The fact that the petitioner has approached this Hon'ble Court earlier with the grievance that the said corporation has not disposed of her representation, has not been disclosed. However when this petition was taken up for hearing, it has been disclosed before this Court that an order has been passed on 26. 4. 2006 disposing of the said petition. Copy of the order dated 26. 4. 2006 has been placed before this Court. Replying to a query raised by this Court, learned Advocate for the petitioner submits that the said Corporation is yet to communicate to the petitioner, decision taken by it on her representation in compliance with the aforesaid order dated 26. 4. 2006. ( 4 ) IN the present petition, the petitioner has alleged that the respondent no. 3 has been erecting concrete pillars almost adjacent to the western wall of her premises by digging soil, thereby affecting the very foundation of the wall. 4. 2006. ( 4 ) IN the present petition, the petitioner has alleged that the respondent no. 3 has been erecting concrete pillars almost adjacent to the western wall of her premises by digging soil, thereby affecting the very foundation of the wall. She apprehends that the wall might collapse resulting in destruction of her premises. It is the petitioner's contention that this is being done by the respondent No. 3 without valid sanction plan from the said Corporation. It is her further case that she has made several requests to the respondent no. 3 to stop the illegal construction but the respondent No. 3 has threatened the petitioner and her family members of dire consequences if they raise any objection. ( 5 ) THE petitioner has further alleged that she had complained to the officer-in-Charge, Bowbazar Police Station (respondent No. 2) in writing on 13. 3. 2006 indicating the threat given by the respondent No. 3 to her and other members of her family and her apprehension of breach of peace in the locality. In the complaint, the petitioner mentioned that if the illegal and unauthorized construction carried on by the respondent No. 3 is not interdicted, that would cause serious damage to the petitioner's property thereby endangering the lives of the members of her family and also the people of her neighbourhood. Ultimately she prayed as follows:"so, it is very necessary to restrain the said Mutwali and his men and agents from making such illegal and unauthorized construction and also from digging soil close to my Western side building wall, otherwise my said building be damaged and/or collapsed ,and also request to make peace and tranquillity in the locality". ( 6 ) IN this petition, the petitioner has raised the grievance that despite receiving the said complaint, the respondent No. 2 has neither taken any step against the respondent No. 3 and his associates nor has. he given necessary police help and protection to her. ( 7 ) ON behalf of the petitioner an affidavit-of-service has been filed in court. It appears therefrom that the respondent No. 3 was sought to be served with a copy of the writ petition but the same has been returned to the petitioner's learned Advocate by the Postal Department with the endorsement "not Claimed". ( 8 ) LEARNED Counsel for the petitioner submits that since the respondent no. It appears therefrom that the respondent No. 3 was sought to be served with a copy of the writ petition but the same has been returned to the petitioner's learned Advocate by the Postal Department with the endorsement "not Claimed". ( 8 ) LEARNED Counsel for the petitioner submits that since the respondent no. 3 and his associates have threatened the petitioner and her family members with dire consequences and such an act has been reported to the police, it is the statutory duty of the respondent No. 2 to provide protection to her and her family members. By failing to provide protection, the respondent no. 2 has failed in the discharge of his duty and suitable directions may be issued compelling him to provide protection to the petitioner. ( 9 ) LEARNED Counsel representing the State, on instructions, submits that there has been no occasion to apprehend breach of peace and tranquillity in the petitioner's locale and hence the petitioner is not entitled to the relief, as claimed. ( 10 ) HAVING perused the petition and on hearing the learned Counsel appearing for the petitioner and the State, this Court is of the firm opinion that this writ petition ought not to be entertained. ( 11 ) IT appears from the complaint lodged by the petitioner before the respondent No. 2 that a prayer has been made to restrain the respondent no. 3 from making illegal and unauthorized construction and also from digging soil close to the western side building wall. It appears to this Court that the petitioner's allegation that the respondent No. 3 has been making construction without any sanction plan from the said Corporation is yet to be established since the said Corporation has not yet given its decision on the petitioner's representation in compliance with the order dated 26. 4. 2006. Since the decision from the said Corporation is still awaited, it cannot be said at this stage that construction that has been raised by the respondent no. 3 is unauthorised. If any construction has at all been raised by the respondent No. 3 without any valid sanction plan, sufficient powers are conferred on the said Corporation by the Kolkata Municipal Corporation act to deal with it appropriately. 3 is unauthorised. If any construction has at all been raised by the respondent No. 3 without any valid sanction plan, sufficient powers are conferred on the said Corporation by the Kolkata Municipal Corporation act to deal with it appropriately. To approach the police authorities for restraining the respondent No. 3 from making construction on the allegation that construction is being raised without a valid sanction plan appears to be premature. In any event by the order dated 26. 4. 2006 the respondent no. 3 has been restrained from making any construction without any valid sanction plan. If any construction is being made by the respondent No. 3 without having any sanction plan from the said Corporation, the petitioner is at liberty to bring it to the notice of this Court that the respondent No. 3 has been acting in a manner which amounts to violation of the Hon'ble court's order dated 26. 4. 2006 and seek appropriate orders. The said Corporation can also be approached in this regard. Also, alleged digging of soil by the respondent No. 3 close to the western side boundary wall of the petitioner's premises, even if illegal, can at best give rise to a private dispute of civil nature, which can be agitated before a competent Civil Court. Certainly, the police have no authority to interfere in such private dispute. ( 12 ) SO far as the other allegation of the petitioner that she and her family members are being threatened with dire consequences by the respondent No. 3 is concerned, the averment in this regard at paragraph 8 of the petition appears to be extremely vague and bereft of material particulars. Same is the position with the allegation made in the complaint dated 13. 3. 2006 in this regard. It is extremely difficult for this Court to form an opinion on the basis of such vague allegation that life and liberty of the petitioner and her family members are under any threat at the instance of the respondent No. 3. ( 13 ) IN any event law is well- settled that if on information to police about commission of offence no action is taken, a writ petition to compel police to take action does not lie and in such a case the remedy of the informant lies in filing a complaint before the Magistrate. ( 13 ) IN any event law is well- settled that if on information to police about commission of offence no action is taken, a writ petition to compel police to take action does not lie and in such a case the remedy of the informant lies in filing a complaint before the Magistrate. Reference in this connection may be made to the decision of the Apex Court reported in 1996 (11) SCC 582 , All India Institute of Medical Sciences Employees' Union ( Reg.) vs. Union of India, wherein it has-been held as follows:"4. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under section 190 read with section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI. . . . . . . . . . . . . . . . . . . . . . " ( 14 ) THE position of law as above has been reiterated in the later decisions of the apex Court reported in 2004 (7) SCC 768 , Gangadhar Janardan mhatre vs. State of Maharashtra and 2006 C Cr. LR (SC) 11, Minu Kumari vs. State of Bihar. . . . . . . . . . . . . " ( 14 ) THE position of law as above has been reiterated in the later decisions of the apex Court reported in 2004 (7) SCC 768 , Gangadhar Janardan mhatre vs. State of Maharashtra and 2006 C Cr. LR (SC) 11, Minu Kumari vs. State of Bihar. In both Gangadhar and Minu Kumari (supra), paragraph 4 of All India Institute (supra) has been extracted verbatim with the further observation that "it was specifically observed that a writ petition in such cases is not to be entertained". ( 15 ) THE petitioner admittedly has not exhausted her rights as conferred on her by the Code of Criminal Procedure and hence the present petition is not maintainable. ( 16 ) THIS Court has taken note of the decision reported in 2006 (4) SCC 501 , P. R. Murlidharan vs. Swami Dharmananda, wherein the Apex Court appears to have carved out certain exceptional situations on the occurrence of which a person may be entitled to police protection by way of issuance of mandamus. ( 17 ) IT has been held that:"a writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the Court is satisfied that there is a threat to his person and the authorities have failed to perform their duties. A writ for 'police protection' so called, has only a limited scope, as, when the Court is approached for protection of rights declared by a decree or by an order passed by a Civil Court. " ( 18 ) AS has been noticed above, the averment made by the petitioner in paragraph 8 of the petition is extremely vague. Having regard to the nature of pleading in the present petition and having due regard to the facts and circumstances of the case, this Court is unable to record its satisfaction that any case has been made out by the petitioner to persuade this Court to hold at this stage that there is a threat to her life at the instance of the respondent No. 3. In such view of the matter, the relief as claimed in the petition cannot be granted. The writ petition thus fails and is dismissed. There shall be no order as to costs. Writ petition dismissed.