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2013 DIGILAW 288 (CAL)

Burdwan Municipality v. STATE OF WEST BENGAL

2013-05-16

AYANTA KUMAR BISWAS

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Judgment : The Court: The petitioners in this W P under art.226 of the Constitution of India dated January 31, 2013 are seeking the following principal relief:- “b. A writ in the nature of mandamus commanding the respondents, to discharge there statutory duty, assist the petitioner to comply Hon’ble High Court direction, order and judgment passed in writ petition November, 8130 (W) of 2011 Nurjahan Vs State of West Bengal and other at once by providing Police Force.” Advocate for the petitioners has submitted that the order of this Court referred to in prayer (b) was dated January 4, 2012. The document at p.12 is a letter of the Chairman of Burdwan Municipality asking the Superintendent of Police, Burdwan to supply police personnel for enforcement of the demolition order. The Chairman then sent reminders to the Superintendent of Police dated December 28, 2012, January 1, 2013 and January 7, 2013. Since the Superintendent of Police did not act in the discharge of his statutory duty created by the provisions of s.409 of the West Bengal Municipal Act, 1993, the petitioners have brought this W P. Advocate for the State has received copies of two letters of IC of Burdwan police station. The first letter is dated March 3, 2013 written by the IC to the Superintendent of Police that steps for providing police personnel would be taken only after Nurjahan Begum who moved the WP No.813 (W) of 2011 in which this Court passed the order dated January 4, 2012 paid the police costs in cash and produced receipt. The second letter is dated February 21, 2013 and it was written by the IC to the Chairman of the Municipality. The relevant parts of the second letter are quoted below:- “In connection the Memo under reference I like to inform you that I have obtained permission from the Superintendent of Police, Burdwan for providing requisite number of Officers and Force to assist you in the aforesaid demolition work peacefully and smoothly. For the allotment of the Officers & Force, requisite police cost as per schedule of the Government of West Bengal is required to be deposited in the State Bank of India on Treasury Challan. For the allotment of the Officers & Force, requisite police cost as per schedule of the Government of West Bengal is required to be deposited in the State Bank of India on Treasury Challan. I, therefore request you to inform the Petitioner to deposit the requisite police cost immediately for the following strength of Officers and Force in the Bank and after depositing the cash the receipt to be deposited in the office of the Superintendent of Police, Burdwan for detailment of Officers and Force on the day of demolition. After deposition of cash, the date may be fixed up for compliance in consultation with you. The number of Officers and Force required are as follows:- SI/ASI-4, Constable- 15, 1 Section RAF, LC/LHG-4.” Section 409 of the West Bengal Municipal Act, 1993 is quoted below:- “409. Co-operation of the police.–(1) The Director General and Inspector-General of Police, West Bengal and the police-officers subordinate to him shall – (a) co-operate with the Municipality for carrying into effect and enforcing the provisions of this Act and for maintaining good order in and outside the municipal area, and (b) assist the Board of Councillors, the Chairman-in-Council or the Chairman or any officer or other employee of the Municipality in carrying out any order made by a Magistrate under this Act. (2) It shall be the duty of every police-officer– (i) to communicate without delay to the Chairman or any officer of the Municipal i ty any information which he receives in respect of any design to commit, or any commission of, any offence under this Act or the rules or the regulations made thereunder, and (ii) to assist the Board of Councillors, the Chairman-in-Council or the Chairman or any officer or other employee of the Municipality reasonably demanding his aid for the lawful exercise of any power vesting in the Municipality or the Board of Councillors or the Chairman-in-Council or the Chairman or such officer or other employee under this Act or the rules or the regulations made thereunder. (3) Any officer or other employee of the Municipality may, when empowered by a general or special order of the Director General and Inspector-General of Police, West Bengal, on the recommendation of the Chairman-in-Council or the Chairman in that behalf, exercise the powers of a police-officer for such of the purposes of this Act as may be specified in such order.” No law provides that the Director General and Inspector-General of Police, West Bengal and the police-officers subordinate to him shall act in the discharge of their statutory duties created by s.409 only if the person benefited by the discharge of duty pays for the service given by the police. The provisions of s.409 have created an unqualified statutory obligation of the police to cooperate with the Municipality for carrying into effect and enforcing the provisions of s.218 of the Act under which the demolition order was passed. The conditions put by the IC in his two letters that only if Nurjahan at whose instance the demolition order was passed paid for the service, the police would co-operate for enforcement of the demolition order have amounted to a clear refusal of the police to discharge the statutory duties. As noted before, no law has provided that for the service the police will be entitled to charge any fee. I am, therefore, of the view that the Superintendent of Police and the IC have failed in the discharge of their statutory duties created by the provisions of s.409 of the Act. For these reasons, I dispose of the W P ordering as follows. Within a week from the date this order is served the Superintendent of Police shall inform the Chairman of the Municipality when the requisite police co-operation shall be made available to the Municipality for enforcing the demolition order in question. No costs.