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2014 DIGILAW 267 (CAL)

Sakti Sadhan Mondal v. State of West Bengal

2014-03-21

ASHIM KUMAR ROY

body2014
JUDGMENT : Ashim Kumar Roy, J. It is the case of the writ petitioner that he is the lawful owner of the plot of land measuring about .78 decimal comprising Plot Nos. 162/1052, 163 and 164 within the Mouza Rajpur, P.S. Sonarpur, which he purchased against valuable consideration in an auction held pursuant to the order of the Hon'ble High Court. It is his further case that during the pendency of the entire process the private respondent nos. 4 and 9 illegally trespassed into the suit property and encroached the same. When pursuant to an order passed by the Hon'ble High Court on May 30, 1984, the receiver with the police assistance on July 11, 1986 removed the respondent nos. 4 and 9 and took the actual vacant physical possession thereof. Thereafter, on September 2, 1986, a deed of conveyance was executed towards the sale of land in question to the writ petitioner and the vacant physical possession of the land was delivered to the writ petitioner. Thereafter, the writ petitioner was enjoying lawful possession of the suit property peacefully but after some time the private respondent no. 4 to 9 with the help of some local antisocial forcibly took possession of the suit property. The said incident although was reported to the said police station but they took no legal action against the said miscreants. Finding no alternative the writ petitioner filed a title suit, T.S. 165 of 1987 before the Munsif 2nd Court, Baruipur and on December 10, 1988 the said suit was decreed in his favour. In this regard the learned counsel of the writ petitioner drew the attention of this court to Annexure P-6 to this writ petition, the judgment and the decree. With reference to the said judgment, it is submitted that the suit was decreed upholding the title of the writ petitioner, the plaintiff in the suit, in respect of the plot in question and for khas possession of the said land after removal of the structure standing thereon and the defendants viz., the respondent nos. 4 and 9 was permanently restrained from disturbing the peaceful possession of the plaintiff, the writ petitioner herein in the suit land. The defendant i.e. the respondent nos. 4 and 9 was permanently restrained from disturbing the peaceful possession of the plaintiff, the writ petitioner herein in the suit land. The defendant i.e. the respondent nos. 4 and 9 were allowed one month time to vacate and deliver the khas possession of the suit land to the writ petitioner and it was directed failing which the plaintiff i.e. the writ petitioner herein shall have the liberty to put the decree in execution. It is the further case of the writ petitioner after the suit is decreed in his favour, the respondent nos. 4 and 9 came to an amicable settlement with him out of court and the writ petitioner transferred 6 cottahs of land comprised in plot no. 164 by a deed of transfer in spite thereof the respondent nos. 4 to 9 once again forcibly took possession of the land comprised in plot no. 163, 162 and 1052 and are remained there, in violation of the order of the Calcutta High Court as also the order passed by the learned Munsef in the title suit. According to the learned advocate of the writ petitioner as his client resisted the writ petitioner and asked them to vacate the plot which they have unauthorizedly and illegally occupied when he was threatened to be murdered and although such incident was reported to the police on June 21, 2010, the police did not take any action. 2. Now this writ application has been moved alleging police inaction and seeking two-fold reliefs, Firstly, the police authority be directed to render police held and to remove the private respondent trespasser from the land in question so that the right of the writ petitioner be protected, Secondly, to show cause the police authorities as to why they failed to comply with the earlier order passed by this court on May 30, 1984 for removal of the private respondents/trespassers and to deliver the possession of the land to the writ petitioner. 3. It is an admitted position the suit which was decreed on 10th day of December, 1988 was never put in execution and already more than 15 years have been elapsed. 4. 3. It is an admitted position the suit which was decreed on 10th day of December, 1988 was never put in execution and already more than 15 years have been elapsed. 4. Now, a short question arises for decision in this writ application, whether police has failed to perform its statutory duties in non-responding to the prayer of the writ petitioner by not rendering police assistance and in removing the private respondents from the case land and whether this court in exercise of its extraordinary writ jurisdiction can direct the police to do the same. 5. It appears from the Annexure P-10, a letter addressed to the respondents police authorities by the learned advocate of the writ petitioner that he called upon the police authorities for necessary police help to recover the property of his client, the writ petitioner herein after eviction and/or removal the trespassers in terms of the order passed by the Hon'ble High Court. It is an admitted position the order passed by the Hon'ble High Court on May 30, 1984 whereby the Superintendent of Police, 24 Parganas South and the Officer-in-Charge, Sonarpur Police Station, the respondent nos. 2 and 3 were directed to render police assistance to the receiver of the land in question for removal of the respondent nos. 4 and 8 has been complied with and not only by virtue of police help the receiver obtained the vacant physical possession of the said land from the said two respondents but also the vacant physical possession of the said land has also been delivered to the writ petitioner pursuant to the deed of conveyance towards the sale of the said property to him. After such order being complied with by the police authorities, the force of the order has come to its logical end and police has no further obligation to carry out such order nor this court can direct the police to do the same. In this regard it may be noted the order so passed by this High Court was not to the effect the police is to take such steps, even after removal of the encroachers from the land in question and after the receiver obtained the vacant possession thereof, in all time to come if again, the miscreants once again encroach the same. Therefore, neither I find police has disobeyed the order passed by the Hon'ble High Court nor in this writ application police can be directed to enforce the order of this court passed on May 30, 1984 which has lost its force after having its effect. 6. In this application in hand, there is another very important aspect after the writ petitioner obtained the delivery of the vacant physical possession of the land in question in the year 1986 following the land in question was purchased by the writ petitioner, in an auction sale held pursuant to the order of the High Court, in the year 1987 the private respondent nos. 4 to 9 once again forcibly trespassed into the land and occupied the same, the writ petitioner filed a regular suit before a competent court and the suit was decreed declaring the title of the writ petitioner in respect of the said land and for removal of the said respondents from the suit property and by issuing a permanent injunction restraining the said respondents from disturbing the peaceful possession of the land by him. Although suit was decreed in the year 1988 but the same was never put to execution and in the meantime the writ petitioner admittedly entered into a settlement over the said land dispute with the private respondents. Already more than 12 years have been passed from the date when the suit was decreed. It is for a competent civil court to execute decree in terms of the provisions of Order 21 of Civil Procedure Code and for the same the decree holder has to apply before the same court which decreed the suit. It needs no mention even an executable decree can be found in executable by the court for various reasons and supervening circumstances. As for example, where the period of limitation of 12 years has expired or where after passing of decree the rights of the parties have been otherwise adjusted. Which are the matters can alone be adjudicated in a regular judicial proceedings according to the provisions of Code of Civil Procedure. Since police is not vested with power to go into such question in exercise of its executive power, the police cannot be blamed on the allegation they are not taking steps in terms of such order. Which are the matters can alone be adjudicated in a regular judicial proceedings according to the provisions of Code of Civil Procedure. Since police is not vested with power to go into such question in exercise of its executive power, the police cannot be blamed on the allegation they are not taking steps in terms of such order. Police is only obliged to provide assistance to a party if there is an order passed by a competent court under the provisions of Civil Procedure Code viz. Section 151 and Order 21, Rule 97 CPC and under regulation 208 of Civil Rules and Order. 7. In view of above, no case for police inaction can said to have been made out. This writ application has no merit and accordingly stands dismissed. 8. Office is directed to supply urgent photostat certified copy of this order to the parties, if applied for, as early as possible.