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2011 DIGILAW 1262 (BOM)

Pushpalata Gopal Worlikar v. Ranjitsing Sharma

2011-10-10

P.B.MAJMUDAR, R.M.SAVANT

body2011
Judgment : (P.B.MAJMUDAR, J.) 1. By way of this petition, the petitioner has prayed for appropriate writ directions orders under Article 226 of the Constitution of India directing respondent Nos.1 to 3 to remove the respondent Nos.4 to 6 from the possession of disputed shop being Shop No.1 in house No.460, Ramchandra Poshu Chawl, Bhagat Gully, Worli, Koliwada, Mumbai – 400 025, which premises according to the petitioner belongs to him. It is the case of the petitioner that she had initially filed a suit for getting possession of the said premises, in which a decree for possession was passed in favour of the petitioner. It is further the case of the petitioner that the petitioner got the decree executed and entered into possession, but subsequently, after some time, the respondent No.4 again entered the premises by trespassing the same with the alleged help of police constables and in that view of the matter, this petition has been filed in which police authorities have been joined as respondents and prayer for possession is made so far as respondent No.4 is concerned. 2. The above petition has been resisted on behalf of the police department. An affidavit-in-reply has been filed by Mr.Ramesh Mahadev Waghmare at page 49. In para Nos.3 and 4 it is averred as under: “3. I say that I was attached to the Dadar Police Station and was working thereat as Police Sub-Inspector for the period September 2002 till 22nd December, 2004. I say that as per records of the Worli Koliwada Police Chowki, Beat No.1, the possession in respect of the writ premises was taken in execution of a decree passed in RE Suit No. 1377/4520/1993 on 29th October, 2002 as more particularly elucidated in the Station Diary Entry Nos.6 and 7. I say that as per the said records, possession of the writ premises was taken from the respondent No.4 and one Vinod Tailors, under police protection. I crave leave to refer to and reply upon the extract of the Station Diary as and when produced. 4. I say that on 10th January, 2003, at about 8.30 p.m., the respondent No.4 approached the Worli Koliwada Beat Chowki, with a complaint against the petitioner. I say that at that time, Head Constable Ashok Bajirao Bhonsle, Police Constable Jagdish Nivruti Kamble were on duty. 4. I say that on 10th January, 2003, at about 8.30 p.m., the respondent No.4 approached the Worli Koliwada Beat Chowki, with a complaint against the petitioner. I say that at that time, Head Constable Ashok Bajirao Bhonsle, Police Constable Jagdish Nivruti Kamble were on duty. The respondent No.4 alleged that the petitioner had allegedly assaulted him and had caused damage to his shop premises. Accordingly, the said police constables accompanied the respondent No.4 to the site whereat the petitioner was found. I say that the said Constables thereafter, brought the petitioner and the respondent No.4 to the Dadar Police Station at about 9.30 p.m. I say that I was the duty Officer at the said time. I say that the petitioner and the respondent No.4 both claimed to be in possession of the premises. It is pertinent to note that at that point of time, the petitioner had not informed me that the possession-of the said premises was taken in execution on 29-10-2002 under police protection. I say that neither me nor the said Constables were aware of the said fact. I say that I called upon both the parties to produce the documents to substantiate their rival claims. The petitioner in no uncertain terms told me that she would produce the documents before me only after consulting her lawyer. However, she omitted and failed to do so. 3. The learned counsel for the respondents states that the decree was in connection with the Shop No.1 and he is in possession of Shop No.2 qua which there is no decree. The learned counsel for the petitioner submitted that the entire shop is one and only wooden partition was made. In our view, such a highly disputed question of fact and that too involving a private party cannot be examined in our writ jurisdiction under Article 226 of the Constitution of India. The learned counsel for the respondents submitted that in fact the original decree was executed with the help of the police and it is not correct that the respondent No.4 entered into the possession with the help of police, for which he has relied upon the affidavit-in-reply. The learned counsel for the respondents submitted that in fact the original decree was executed with the help of the police and it is not correct that the respondent No.4 entered into the possession with the help of police, for which he has relied upon the affidavit-in-reply. Considering the above facts and the fact that even respondent No.4 has alleged to have trespassed upon the property again after the execution of the decree, the appropriate remedy would be to file a substantive civil suit to get back possession in accordance with law. The learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of ShaliniShyam Shetty and Anr. V/s. Rajendra Shankar Patil 2010 (6) Mh.L.J. 661. In fact, the said decision does not come to the aid of the petitioner in any manner. The relevant observations of the Supreme Court are reproduced hereinunder: 15. The facts of the case have been discussed in detail in order to show that in a pure dispute of landlord and tenant between private parties, a writ petition was entertained by the High Court. It did not pass any order on the writ petition, inter alia, on the ground that there are concurrent findings of fact. If the findings have not been concurrent, the High Court might have interfered. In any event, High Court did not hold that a writ petition is not maintainable in a dispute between landlord and tenant in which both are private parties and the dispute is of civil nature. 16................... 72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty. 73. In the instant case, none of the above features are present, even then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord. Therefore, High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order. 4. Considering the aforesaid ruling of the Supreme Court, a dispute between the petitioner and the respondent No.4 cannot be adjudicated in a petition filed under Article 226 of the Constitution of India. Therefore, High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order. 4. Considering the aforesaid ruling of the Supreme Court, a dispute between the petitioner and the respondent No.4 cannot be adjudicated in a petition filed under Article 226 of the Constitution of India. Even though, the respondent No.4 has alleged to have trespassed upon the property in question, the remedy would be to file civil suit for obtaining possession. The petitioner could have filed a complaint for illegal trespass before the police, instead she has rushed to this Court. It is not a case where the authorities are in any way instrumental in getting the respondent No.4 into the premises. In view of the same, it is obviously a property dispute between the petitioner and the respondent No.4 and the respondent No.4 even if illegally having taken possession, the writ jurisdiction of this Court cannot be invoked. If such petitions are entertained, then even a private dispute of landlord and tenant will be brought before this Court. The learned counsel for the petitioner, having realized this difficulty, submits that the petitioner would like to file appropriate proceedings before the Civil Court. If any such proceedings are filed, it is for the appropriate Court to consider whether such proceedings are required to be expedited in view of the fact that the above petition was being prosecuted by the petitioner in this Court since 2003. 5. In the light of what is stated above, the writ petition is dismissed. Rule discharged.