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2020 DIGILAW 110 (CAL)

Amit Kumar Banerjee v. State Of West Bengal

2020-01-27

SABYASACHI BHATTACHARYYA

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JUDGMENT 1. The present writ petition has been filed alleging police inaction on a complaint made by the petitioner on the basis of a decree of a civil court passed in favour of the petitioner. 2. Initially the petitioner filed a suit for recovery of possession and permanent injunction and got a decree therein. 3. Subsequently, the first appellate court reversed such decree, on which a second appeal was preferred by the present petitioner. The second appellate court affirmed the decree of the Trial Court by reversing that of the first appellate courts decree and granted permanent injunction specifically. 4. Learned counsel relies on Annexure-P11 (a bailiffs report) to the writ petition to show that possession was handed over in due process of law by the court bailiff from the Chittaranjan Sporting Club, which is respondent no.6 here, as well as local people, who were members of the said club, as per the report of the bailiff. 5. Learned counsel for the petitioner further relies on certain photographs annexed to the present writ petition which show that initially the plaintiff had encircled the property in dispute by a corrugated sheet boundary, but the said temporary boundary was demolished and thereafter the decretal land is being used by the private respondents for the purpose of playing games. The said respondents have also affixed a temporary badminton net therein. 6. Learned counsel for the petitioner cites an unreported judgment dated March 8, 2013 passed by a co-ordinate bench in W.P. 5758(W) of 2013 where it was held that after the petitioner obtained a decree from the civil court and the petitioner was given possession of the suit property in connection with a connected execution case, the petitioner was entitled to approach the police for protection of the possession of the petitioner. 7. Learned counsel further relies on a judgment reported at (2006) 4 SCC 501 [P.R. Murlidharan and others vs. Swami Dharmananda Theertha Padar and others] , wherein the Supreme Court held, inter-alia, that there was a difference in cases where the matter pertains to a civil dispute and the petitioner had not got his title vindicated by a civil court, as opposed to a situation where the petitioner was armed with the civil courts decree. 8. 8. It was held that, in the latter case, police protection could be extended for the purpose of protecting the rights declared by a decree or order passed by a civil court. 9. Learned senior counsel appearing for the respondent nos.7 and 8 submits that the writ petition has betrayed the fact that the writ petitioner has already been dispossessed. 10. In this context, learned senior counsel relies on a statement contained in paragraph 25 at page-19 of the writ petition, which says that the members of the respondent club started entering the land in question and installed a temporary badminton net on the said land and started using it again as their playground. 11. Learned senior counsel further places relief (b) of the writ petition which, inter-alia, includes a prayer to provide adequate police protection while handing over physical possession of the disputed property to the petitioner. It is argued that such prayer itself indicates that the petitioner is not in possession of the suit property. 12. As such, it is submitted that the relief of the petitioner lay in a proceeding under Section 6 of the Specific Relief Act, 1963 , which ought to have been filed within six months from such dispossession. 13. Failing to have taken recourse to such remedy, the petitioner is seeking, what he could not directly do, in the indirect manner of filing this writ petition, according to the respondent nos.7 and 8. 14. It is further submitted that one Sabuj Sangha, a local organization, is actually in possession of the disputed premises. The respondent nos.7 and 8 are not the President and the Game Secretary of the respondent no.6-club, as wrongly designated in the cause title of the writ petition, as per the submission of the respondent nos. 7 and 8. 15. Learned senior counsel further submits that the petitioner could at best have resorted to Section 144 of the Code of Criminal Procedure if the petitioner is actually in possession of the premises. 16. Not having taken recourse to such remedies indicates, according to the respondent nos.7 and 8, that the petitioner is palpably not in possession of the suit property and the writ petition is not maintainable at his instance at all. 17. 16. Not having taken recourse to such remedies indicates, according to the respondent nos.7 and 8, that the petitioner is palpably not in possession of the suit property and the writ petition is not maintainable at his instance at all. 17. Learned counsel appearing for the respondent no.9, the local councillor, submits that the said councillor has been roped in unnecessarily in the matter, without any concrete evidence of her involvement in the matter at all. 18. It has been alleged in the writ petition that respondent no.9 has taken an active role in the trespass on the suit property by the private respondents, which is squarely denied by learned counsel for the respondent no.9. 19. Learned counsel appearing for the respondent authorities submits a report authored by the Inspector-in-Charge of the Uttarpara Police Station, which indicates that on the night of December 1, 2019, the petitioner had given information over telephone to Konnagar TOP and P.S. that some persons broke open their boundary wall and on receiving that information officers and force of Konnagar TOP had gone to the spot and found that portion of boundary wall had been broken, but none were present at the spot. 20. The petitioner was requested to submit a complaint, on which a complaint was submitted by the petitioner against respondent nos.9 and seven others, as per the said report. 21. The report further discloses that the Uttarpara Police Station has already registered a case under Sections 447, 379, 427 and 34 of the Indian Penal Code and investigation is going on. 22. During investigation, witnesses were examined and their statements recorded under Section 161 of the Code of Criminal Procedure. 23. The report further says that the police held raid at the house of the accused persons and all the accused persons surrendered before the ACJM Serampore Court and were released on bail. The investigation, the report says, is going on. 24. The primary argument of the respondent nos. 7 and 8, as regards the petitioner having admitted to be out of possession, cannot be accepted. 25. The averment at paragraph-19 at best indicates that the members of the respondent club started entering the land in question and installed a temporary badminton net and have been using it as their playground. 26. The primary argument of the respondent nos. 7 and 8, as regards the petitioner having admitted to be out of possession, cannot be accepted. 25. The averment at paragraph-19 at best indicates that the members of the respondent club started entering the land in question and installed a temporary badminton net and have been using it as their playground. 26. Using a particular field as a playground does not tantamount to occupation of the said land round the clock and/or ouster of the decree-holder. 27. Moreover, in view of the peculiar circumstances of the case, since the alleged miscreants have been entering into an exiting the suit property on occasions, as per the allegation of the petitioner, and holding games and other functions over the land in question, the prayer (b) in the writ petition, for handing over physical possession, has to be read with the other prayers regarding protection of the petitioners possession over the suit property. The said handing over of physical possession, as sought by the petitioner, cannot be taken in isolation and construed to be an admission of the petitioner being out of possession. 28. Moreover, user of a property as a playground cannot, by any stretch of imagination, amount to possession of the said property, because such entry into the property is interspersed with time lags, during which the trespassers are not in possession over the suit property. 29. In case of deciding legal possession and/or ouster of the owner, there has to be permanence in the nature of ouster and possession. 30. In the absence of such permanence, since the allegation is merely that the boundary wall has been broken, which is endorsed by the police report, which also says that none were present at the spot when the police investigated into the matter, it is evident that the local miscreants are trying to dispossess the petitioner by breaking open the boundary wall and occasionally trespassing into the property in dispute. 31. As such, unless a thorough investigation is completed and the charge sheet is submitted by the police, it would be premature to hold that the petitioner is not in possession. 32. Rather, as affirmed up to second appeal in this court, the petitioner was held to be in possession and permanent injunction was granted in favour of the petitioner. 31. As such, unless a thorough investigation is completed and the charge sheet is submitted by the police, it would be premature to hold that the petitioner is not in possession. 32. Rather, as affirmed up to second appeal in this court, the petitioner was held to be in possession and permanent injunction was granted in favour of the petitioner. Even the bailiffs report relied on by the petitioner, makes it evident, that possession was handed over by the respondent no.6-club to the petitioner, in the presence of certain alleged members of the said club who were also obstructing such handing over of possession at the relevant juncture. 33. As such, it is prima facie evident that the miscreants have renewed their efforts to trespass into the suit property, thereby trying to relegate the decree of a competent civil court, passed in favour of the petitioner, merely to an useless paper, which attempt cannot be permitted by this court. 34. The argument of the petitioner, that a writ court has jurisdiction to grant police help for protection of a right conferred on the petitioner by a civil court, is bolstered by the judgments cited by the petitioner as well. 35. The judgment cited on behalf of the respondent nos.7 and 8, being reported at AIR 2008 SC 690 [State of Rajasthan vs. Ganeshi Lal] is only on the proposition that if the facts in different cases are different, the proposition laid down in one of the cases cannot be used as a precedent in the other. 36. In the present case, however, the facts virtually resemble the factual scenario in the reported cases. It is obvious that each and every fact of two cases cannot match each other, merely because different cases arise from different causes of action. 37. What is to be seen is that whether, vis--vis the proposition laid down, the facts of the cases substantially match, so that the ratio laid down in one can be used as a precedent in respect of the other. 38. Such criteria having been fulfilled in the present matter, the ratio laid down in the decisions cited by the petitioner are applicable to the present case. 39. 38. Such criteria having been fulfilled in the present matter, the ratio laid down in the decisions cited by the petitioner are applicable to the present case. 39. Although it is seen from the police report that investigation is going on, it does not appear from the averments in the writ petition and the photographs annexed thereto, which are, of course, factually denied by the private respondents, that attempts at trespassing into the suit property, for using it for whatever purpose, have stopped, which view is also strengthened by the report of the police. 40. In such view of the matter, the police action is not sufficient, since the police also ought to have provided protection to the petitioner to implement the decree of permanent injunction granted by the civil court. 41. Since the decree of the civil court had already been executed, instead of relegating the petitioner to filing a second execution case, the remedy of the petitioner squarely lies before this court, which has the power to direct the police to see that the decree passed by a competent civil court in favour of the petitioner is upheld in all its honour. 42. Even in the event the respondent nos. 7 and 8 or 9 are not directly involved in the matter, it will be revealed in the investigation itself, and the said respondents cannot have any say in the event their allegation, that one Sabuj Sangha, which is an outsider, is in possession of the disputed premises, since then, the said respondents are not affected by the outcome of the matter at all. 43. In such view of the matter, W.P. 659(W) of 2020 is disposed of by directing the police to complete the investigation on the basis of the complaint of the petitioner as expeditiously as possible and file a charge sheet. 44. The police, that is, the respondent no.5, is directed to provide round the clock police protection to the petitioner, for which deployment of police personnel, the costs will be borne by the petitioner. 45. In the event, the local police fails to give such protection as directed herein, it will be open to the petitioner to approach this court and/or the respondent nos.3 and 4 with the said grievance. 46. 45. In the event, the local police fails to give such protection as directed herein, it will be open to the petitioner to approach this court and/or the respondent nos.3 and 4 with the said grievance. 46. It is made clear that this court has not gone into the merits of the allegations made in the writ petition and the same will be subject to the outcome of the investigation by the police and/ or any challenge taken thereto by any of the aggrieved parties. There will be no order as to costs. Urgent photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.