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2008 DIGILAW 825 (CAL)

Noor Sabah Ansari v. STATE OF WEST BENGAL

2008-08-13

Indira Banerjee

body2008
JUDGMENT: 1. THE petitioner claims to be the Mutawalli of the Estate of Sk. Noor Mohammed, hereinafter referred to as the Wakf estate. The petitioner has stated that by a letter being Reference no. 2980 dated 17th December, 2002, the Chief Executive Officer of the board of Wakf requested the petitioner to develop the property of the Wakf estate, situated at 7/1 Ibrahim Road, Kolkata "700 023, which is hereinafter referred to as the said property. The petitioner as Mutawalli undertook the development of the said property. A building plan was prepared and the same was sanctioned by the Kolkata Municipal Corporation in August, 2006. Subsequently, by a letter dated 25th September, 2006 the Chief executive Officer of the Board of Wakf confirmed that the petitioner would continue as Mutawalli of the Wakf Estate. 2. THE petitioner thereafter engaged contractors for the purpose of construction. It is alleged that the respondent Nos. 7 to 11 are, in collusion with local hooligans, obstructing the labour contractors. It is also alleged that the private respondents have been threatening the petitioner, the contractor and the labourers. The petitioner claims to have lodged complaints with Ekbalpur police Station. It is alleged that the Chief Executive Officer of the Wakf board also requested the Commissioner of Police, Kolkata to take necessary action against the persons who were obstructing construction. It is stated that the petitioner, in apprehension of breach of peace, initiated proceedings under Section 144 (2) of the Criminal Procedure code before the learned Executive Magistrate, Alipore being M. P. Case no. 188/2006. By an order dated 18th October, 2006, the learned Executive magistrate, Alipore directed the Officer-in-Charge, Ekbalpur Police Station to make an enquiry and submit a report by 17th November, 2006, and also to ensure that no breach of peace took place. It is submitted that the police authorities have not complied with the order of the learned Executive magistrate. Ms. Sukla Kabir Sinha appearing on behalf of the petitioner submitted that the police were under a statutory duty to protect life and property, from criminals, hooligans and/or vandals. Ms. Kabir Sinha referred to the duties of police officers as provided in Section 23 of the Police Act, 1861 which is extracted hereinbelow: "23. Duties of police-officers. Ms. Sukla Kabir Sinha appearing on behalf of the petitioner submitted that the police were under a statutory duty to protect life and property, from criminals, hooligans and/or vandals. Ms. Kabir Sinha referred to the duties of police officers as provided in Section 23 of the Police Act, 1861 which is extracted hereinbelow: "23. Duties of police-officers. "it shall be the duty of every police-officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting public peace; to prevent the commission of offences and public nuisance; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming-house or other place of resort of loose and disorderly characters. " Ms. Kabir Sinha also referred to the regulations framed under the Police Act, 1861 which provide for posting of additional policemen and/or police pickets, in certain contingencies. Ms. Kabir Sinha submitted that the petitioner was entitled to an order for police help. In support of her argument Ms. Sukla Kabir Sinha relied on the following judgments: 1. Howrah Mills Company Ltd. and Anr. vs. Md. Shamin and Ors. reported in 2006 (5) SCC 539 . 2. Niranjan chakraborty vs. State of West Bengal and Ors. reported in 2003 (1) CLJ 431. The application being G. A. No. 3698 of 2006 for addition as party respondents, has been filed by 22 applicants, claiming themselves to be beneficiaries and trustees of the Wakf Estate. The said applicants contend that 22 of the 25 beneficiaries and trustees of the Wakf Estate had on 8th july, 2005 adopted a resolution, selecting one Md. Jiyauddin and Fiaz ahmed as joint mutawallis of the Wakf Estate in terms of the Wakf Deed dated 28th August, 1963. The resolution was, however, opposed by the writ petitioner. 3. ACCORDING to the applicants, the declaration of the writ petitioner as mutawalli was in contravention of the provisions of the Wakf Deed dated 28th August, 1963. Jiyauddin and Fiaz ahmed as joint mutawallis of the Wakf Estate in terms of the Wakf Deed dated 28th August, 1963. The resolution was, however, opposed by the writ petitioner. 3. ACCORDING to the applicants, the declaration of the writ petitioner as mutawalli was in contravention of the provisions of the Wakf Deed dated 28th August, 1963. The applicants allege that the writ petitioner is in collusion and conspiracy with the Board of Wakfs, trying to make over the said property to promoters and are trying to raise an unauthorized construction thereat without the knowledge and/or consent of the applicants. It is further alleged that the said property was set apart by the wakif for charitable purposes and the writ petitioner is acting in derogation of the wishes of the Wakif. 4. THE applicants claim to have made representations with diverse authorities to stop the construction. The applicants have submitted that unless applicants are added as party respondents to the writ application and unless the writ petitioner along with her men and agents are restrained from raising unauthorized construction at the premises in question, the applicants would be prejudiced. Mr. Bhattacharya appearing on behalf of the applicants in G. A. No. 3698 of 2006, hereinafter referred to as the applicants, submitted that the property in question was the subject matter of a suit being Suit No. 14 of 2006 pending between the same parties, that is, the writ petitioner and the applicants before the learned Wakf Tribunal. The applicants submit that the plaintiffs having failed to obtain interim injunction against the private respondents, who are defendants in suit No. 14 of 2006, have now filed a writ application with oblique intent. It is submitted that the writ petitioner has filed this writ petition, suppressing the fact that a civil suit with regard to identical issues, is pending between the writ petitioner and the private respondents in the Wakf Tribunal. Mr. Bhattacharya submitted that the writ application involved highly disputed questions of fact which cannot be adjudicated by this Court, in exercise of jurisdiction under Article 226 of the Constitution of India. On behalf of the applicants, it is also submitted that the writ petitioner had obtained ex parte orders from the Wakf Board. Mr. Bhattacharya submitted that the writ application involved highly disputed questions of fact which cannot be adjudicated by this Court, in exercise of jurisdiction under Article 226 of the Constitution of India. On behalf of the applicants, it is also submitted that the writ petitioner had obtained ex parte orders from the Wakf Board. The Wakf board had, after hearing the contentions of the parties, adopted a resolution dated 26th September, 2007, with regard to establishment of an educational institution at the said property. 5. MR. Bhattacharya submitted that the appropriate remedy for settlement of property disputes was a regular suit and not an application under Article 226 of the Constitution of India. This Court ought not to entertain the writ petition which involves disputed questions of fact, particularly, when identical issues between the same parties are pending adjudication before another forum. In support of the aforesaid submissions, Mr. Bhattacharya relied on the judgment of the Supreme Court in Mohan Pandey vs. Usha Rani rajgaria reported in AIR 1993 SC 1225 (Para 26) and State Bank of India and ors. vs. State Bank of India Canteen Employees Union and Ors. reported in 1998 (4) Supreme Today 530 (Para 6 ). Mr. Arefin, appearing on behalf of the private respondent Nos. 8 and 9, submitted that under the Wakf Act of 1995, the Tribunal constituted by the State Government by notification, was to determine any dispute, question or other matter relating to a Wakf or Wakf property and any mutawalli or any person interested in a Wakf or any other person aggrieved by any order under the said Act or Rules made thereunder might make an application, within the time specified in the said Act, or where no such time had been specified, within such time, as may be prescribed, to the Tribunal for determination of any dispute, question or other matter relating to the wakf. 6. MR. Arefin submitted that the writ petitioner had failed to obtain an interim order of injunction in the suit and had thereafter taken recourse to the devious course of initiating writ proceedings complaining of police inaction and seeking orders on the police to render assistance to the police to carry on construction. Mr. 6. MR. Arefin submitted that the writ petitioner had failed to obtain an interim order of injunction in the suit and had thereafter taken recourse to the devious course of initiating writ proceedings complaining of police inaction and seeking orders on the police to render assistance to the police to carry on construction. Mr. Arefin cited a judgment of this Court (J. K. Biswas, J.) in bhakti Binod Samanta vs. State of West Bengal reported in 2008 (2) CLJ 137 (Cal) where the Court held that even though existence of an alternative remedy was not an absolute bar for entertaining a writ petition, a writ petition could be entertained only if the writ petitioner was unable to pursue the remedies of appeal or revision for no fault of his own. In reply to the submissions of Mr. Bhattacharya and Mr. Arefin, ms. Kabir Sinha submitted, and rightly, that the writ petitioner had not raised any disputed questions of fact in the writ petition. Nor had the writ petitioner invited this Court to adjudicate title to property. Ms. Kabir Sinha pointed out that Suit No. 11 of 2005 filed by the writ petitioner had been decreed in favour of the writ petitioner. The Wakf tribunal upheld the contention of the writ petitioner of being Mutawalli of the Wakf Estate and permanently restrained the defendants in the suit, that is, the private respondents herein from disturbing the functioning of the writ petitioner as Mutawalli. Another suit being Suit No. 14 of 2008 for a declaration that the property in question belongs to the Wakf Estate and a permanent injunction restraining the private respondents from interfering with construction thereat is still pending. There is apparently a decree in favour of the writ petitioner in suit No. 11 of 2005. There is thus, a judicial pronouncement accepting the writ petitioner as Mutawalli of the Wakf Estate. The private respondents have also been permanently restrained by an order of injunction from disturbing the functioning of the writ petitioner as Mutawalli. The Board of Wakf has also accepted the writ petitioner as mutawalli and has apparently approved the development of the said premises. A building plan has been prepared and sanctioned. The private respondents have also been permanently restrained by an order of injunction from disturbing the functioning of the writ petitioner as Mutawalli. The Board of Wakf has also accepted the writ petitioner as mutawalli and has apparently approved the development of the said premises. A building plan has been prepared and sanctioned. In this writ application, it is alleged that the private respondents as also other antisocial elements are threatening the writ petitioner and the labourers engaged by the writ petitioner for construction at the said premises and otherwise, resorting to acts of threat, intimidation, hooliganism and vandalism to force the writ petitioner to concede to their unlawful demands. 7. IN this application under Article 226 of the Constitution of India, this Court is not concerned with the disputed question of fact of whether the demands of the private respondents and/or applicants are lawful and/or unlawful. The question is, whether any person can resort to unlawful acts of hooliganism, vandalism, threat, intimidation or coercion to enforce demands, however, lawful the demands might be. The answer to this question cannot, but, be in the negative. It is true, as argued by Ms. Kabir Sinha that the police have a statutory duty to obey and execute all orders and warrants lawfully issued by any competent authority. The police officers are thus bound to enforce orders of the executive magistrate in proceedings under Section 144 of the criminal Procedure Code. The submission finds support from the Single bench judgment of this Court in Niranjan Chakraborty (supra). This Court is, however, not inclined to pass orders directing the respondent police authorities to enforce the order of the Executive magistrate directing the police authorities to ensure that no breach of peace took place around the said premises, since it appears that the order passed by the learned Magistrate has lost its force. However, there is an alternative procedure for enforcement of orders under Section 144. 8. HOWEVER, a writ lies for enforcement of the various statutory duties of the police enshrined in Section 23 of the Police Act, which includes the prevention of commission of offences and public nuisance, detection of offences and bringing of offenders to justice, apprehension of all persons whom the police authorities are legally authorized to apprehend and for whose apprehension sufficient grounds exists. Threat, intimidation or causing of bodily injury, wilful destruction of property, riotous behaviour being offences under the Indian penal Code, the police authorities are statutorily bound to prevent the same. In Howrah Mills Co. Ltd. (supra) the Supreme Court held that it was the duty of the police of the State to give necessary protection for protecting property from interference by law-less elements and unauthorized persons so as to ensure revival of a sinking industry. In Niranjan Chakraborty (supra) a learned Single Judge of this court held that every police officer had a public duty to carry out orders of court including orders of Executive/judicial Magistrates. The existence of an alternative remedy of enforcement under section 188 of the Indian Penal Code of an order of Court would not prevent the Writ Court from passing an order compelling the police to carry out orders of a competent Court. However, in this case, as observed above, it is not known whether the order of the Executive Magistrate is still subsisting and in force. However, irrespective of any subsisting order of a Magistrate, there can be no question of recourse to unlawful activities to enforce demands whether lawful or unlawful. As rightly submitted on behalf of the applicants, as also the private respondents all disputes with regard to Wakf property are to be agitated before the Wakf Tribunal. Thus the applicants and/or private respondents ought to have approached the Wakf Tribunal for orders restraining the writ petitioner from proceeding with construction at the said premises. Not having done so, the applicants and the said respondents cannot take law into there own hands. 9. IT is also true that it is not for the police to assist the writ petitioner to make construction. The prayers have not properly been framed. However, this Court in exercise of its writ jurisdiction has power to mould the reliefs, for ends of justice. The very fact that the applicants as also the private respondents are opposing tooth and nail, even an innocuous order directing the police authorities to ensure that no unlawful and/or illegal activity and/or act of hooliganism or vandalism takes place, is in itself an indicator of the improper motive of the applicants/private respondents. The very fact that the applicants as also the private respondents are opposing tooth and nail, even an innocuous order directing the police authorities to ensure that no unlawful and/or illegal activity and/or act of hooliganism or vandalism takes place, is in itself an indicator of the improper motive of the applicants/private respondents. It is, however, made clear that the aforesaid observations are without prejudice and are not to be construed in as any definite finding of the applicants or the private respondents having taken recourse to any criminal, wrongful and/or unlawful activities. The only issue involved in this writ application, is whether police protection can be sought to prevent offences, unlawful acts and/or acts of hooliganism. There is no disputed question of fact involved in this writ application, nor any question of title to property involved. The judgments in State Bank of India (supra) and Mohan Pandey (supra) are not applicable in the facts of this case, even though the proposition of law laid down therein is well-established. 10. THE writ petitioner has no efficacious alternative remedy to enforce the statutory duty of the police. The judgment in Bhakti Binod samanta's case (supra) was rendered in the context of challenge to an order of the District Forum, under the Consumer Protection Act, 1986 against which the writ petitioner had not preferred any appeal or revision. Mr. Bhattacharya has also relied on a judgment rendered by a division Bench of this Court in Divine Grace Apartments Welfare association and Anr. vs. Mossamat Anis Fatma Begum reported in AIR 2008 cal. 139 . The aforesaid judgment is distinguishable on facts in as much as the respondent No. 1 had been seeking police intervention to unlock a gate and that too when there was access through another gate/other gates. In the aforesaid case too, the Division Bench held that a writ might lie to enforce of a constitutional, a statutory, a legal or may be even an equitable right or to compel performance of a statutory duty. The writ petitioner certainly has a fundamental right to life which includes the right to personal safety and the police authorities are duty bound to protect the same. The police authorities might, by a writ, be compelled to perform their statutory duties. The writ petitioner certainly has a fundamental right to life which includes the right to personal safety and the police authorities are duty bound to protect the same. The police authorities might, by a writ, be compelled to perform their statutory duties. In the case of D. G. A. Owners welfare Association (supra), there was no whisper in the petition of nonperformance and/or or breach of any specific statutory duty. The police are under a statutory duty under the provisions of the police Act to ensure that no unlawful activities take place. If the petitioner has the requisite sanctions, the petitioner is entitled to carry on construction, in accordance. The policemen cannot be obstructed by recourse to methods which constitute a criminal offence. The applicants and the private respondents have no right to take recourse to unlawful activities to prevent the petitioner from proceeding with construction. The applicants and/or the respondents have not taken recourse to any legal proceedings nor obtained any order of injunction against the petitioner. It is the case of the applicants themselves that the application being G. A. 3698 of 2006 has been filed to restrain the petitioner from proceeding with construction. There can be no question of any restraint order against the writ petitioner in her own writ application. The applicants are not necessary parties to this application, no relief having been claimed against them. The passing of an order for police assistance to prevent unlawful acts cannot affect any right of the applicant. The applicants it is reiterated, have no right to take recourse to unlawful methods to enforce their demands. No order need be passed in the application for addition of the applicants as parties to the writ application. The writ application is thus allowed. The Officer-in-Charge of ekbalpur Police Station is directed to ensure that no criminal and/or illegal and/or unlawful activities take place in or around the construction site, if necessary, by posting of police pickets at the cost of the petitioner. Counsel appearing in G. A. 3698/2006 prays for stay of operation of this order. The prayer for stay is considered and refused, since the police have merely been directed to ensure that no illegal and unlawful activities take place. No person has any right to perpetrate illegal and/or wrongful activities. Counsel appearing in G. A. 3698/2006 prays for stay of operation of this order. The prayer for stay is considered and refused, since the police have merely been directed to ensure that no illegal and unlawful activities take place. No person has any right to perpetrate illegal and/or wrongful activities. Let xerox plain copy of this judgment and order, duly countersigned by the Assistant Registrar (Court) be supplied to the Counsel appearing for the parties on the undertaking of the parties to apply for and obtain certified copy of this judgment and order.