Calcutta High Court (Appellete Side)
Samrat Sekh vs The State Of West Bengal & Ors on 8 July, 2025
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
W.P.A. 14585 of 2025
Samrat Sekh
versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Debasish Kundu
Mr. Sayan Mukherjee.
For the State : Mr. Anand Farmania
Mr. Dhananjay Banerjee.
Heard On : 08.07.2025
Judgement On : 08.07.2025
Tirthankar Ghosh, J. :
Petitioner has approached this Court invoking the jurisdiction under Article
226 of the Constitution of India advancing the following prayers:
a) A writ in the nature of mandamus commanding the respondent
authority specifically respondent no.4 and 5 to show cause as to
2why the private respondents No.8 to 9 should not be arrested
immediately upon proper criminal case being registered against the
private respondent by the police authority;
b) A writ in the nature of mandamus directing the respondent
authority specifically the respondent Nos.4 and 5 to show as to
why they should not be restrained from pro-activeness/over action
for helping the private respondent and perform their statutory duty;
c) A writ in the nature of mandamus commanding the respondent
authority to restrained the private respondents from making any
obstruction to construct the house of the petitioner immediately and
stop the private respondents from creating nuisance over the
petitioner’s property;
d) A writ in the nature of mandamus commanding the respondent
authority to show cause as to why the proper investigation of the
instant case should not be conducted by arresting the accused
persons immediately;
e) A writ in the nature of certiorari commanding the respondent to
certify and transmit to this Hon’ble Court the record of the case so
that conscionable justice may be done;
f) Rule NISI in terms of prayer (a), (b), (c), (d) and (e) above;
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g) Ad-interim order do issue restraining the private respondents from
entering into the land of the petitioner till disposal of this writ
petition;
h) Ad-interim direction to the police authority to give police help
and/or assistance to the petitioner till the disposal of the writ
application;
i) Costs;
j) Such other or further order(s) and/or direction(s) as to this Hon’ble
Court may deem fit and proper.”
Learned advocate appearing for the petitioner has drawn the attention of the
Court to the photostat copy of the record of rights which has been enclosed and
claimed to be the owner of the land referred to therein. Attention of the Court was
drawn to a text message advanced through the Government of West Bengal
wherein an installment of Rs.60,000/- for Awas Yojona was advanced from the
Panchayat and Village Development, Government of West Bengal. Petitioner also
approached the learned Civil Judge (Junior Division), 3rd Court, Krishnagar by
way of filing T.S.75 of 2025 wherein an application was preferred under Order
XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The
learned Civil Judge by its order dated 02.04.2025 directed the defendants to be
restrained from creating any disturbance in the peaceful enjoyment and
possession over the suit property referred to in the plaint and also directed not to
change the nature and character of the property. Learned advocate has also
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referred to the representation made to the Superintendent of Police, Krishnagar
Police District, Officer-in-Charge, Chapra Police Station and the Pradhan, Kalinga
Gram Panchayat wherein the learned advocate representing the petitioner
communicated to the police authorities in respect of construction of the house
under Awas Yojona. Learned advocate has also drawn the attention of the Court
that the order passed by the learned Civil Judge in T.S.75 of 2025 was
communicated to the police authorities and after receiving the said order, the
police authorities did not put in efforts to protect the order of the Hon’ble Court
and had been directing not to make any construction, although there was a
direction to restrain the anti-socials from obstructing the construction of the
petitioner.
Learned advocate for the State has submitted a report. Report reflects that
the petitioner and the private respondents both have initiated cases. Chapra P.S.
Case No.116 of 2025 dated 03.02.2025 was registered for investigation wherein
private respondents lodged a case and consequently after conclusion of
investigation charge-sheet was submitted. Series of cases have been filed under
Section 163 of the BNSS. In course of enquiry in the cases arising out of Section
163 of the BNSS, police authorities ascertained relating to the offences which
have been committed and further while investigating the case being Chapra P.S.
Case No.116 of 2025 it was unearthed that the construction work was done
forcefully on the disputed land, the original deed was not produced before the
police authorities by the petitioner. No document was provided in course of
investigation, consequently, police authorities had no other option except to take
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steps in accordance with law. Police authorities, however, on or about 19.06.2025
and on 23.06.2025 drew up proceedings under Sections 126/135 of the BNSS
against the private respondent nos.8 and 9.
I have considered the submissions advanced by the petitioner and the
State. Although, according to the petitioner, service was effected upon the private
respondents but the private respondents were not represented at the time when
the writ petition was taken up for hearing. The emphasis of the petitioner is that
the civil court’s order which was passed in T.S.75 of 2025 should be implemented
by the police authorities and the police authorities should not be allowed to
restrain the petitioner from carrying out the construction which was under the
Scheme (Awas Yojona).
It has been a settled proposition of law that, for breach of an order of a
civil court it is the civil court itself which can pass directions upon the police
authorities. The infraction of any direction passed by the Civil Court cannot be
acted upon by the police authorities until and unless there is a specific direction
being passed by the said Court.
The subject matter of the present application essentially deals with a
private dispute wherein the police authorities have been introduced in order to
invoke the jurisdiction of this court under Article 226 of the Constitution of India.
The Hon’ble Supreme Court in Prasanna Kumar Roy Karmakar Vs. State of
West Bengal reported in 1996(3) SCC 403; Rashina T. vs. Abdul Azeez K.T.
reported in 2019 (2) SCC 329; Radhey Shyam v. Chhabi Nath reported in (2009) 5
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SCC 616 have deprecated the interference under Article 226 of the Constitution
of India in respect of disputes which are purely private and personal in nature
and wherein the civil court is already in seisin of the issue.
In view of the subject matter involved in the present writ petition the
following paragraphs 9,10,14,15,16,19 and 21 of Radhey Shyam -versus- Chhabi
Nath (supra) is relevant, the same as such is set out below:-
“9. From the aforesaid narration of events, it is clear that the
proceedings in this case arose out of purely civil disputes relating to
property and the parties have filed suits before the civil court, and the
suits are pending. The parties to the proceedings are all private
individuals. Neither the State nor “State” nor an authority under Article
12 is a party to this proceeding. This is clear from the cause-title of this
appeal. Now the question is : whether private individuals are amenable
to the jurisdiction of writ court in connection with the private disputes
relating to property, possession and title between private individuals?
10. As early as in 1957, a Constitution Bench of this Court in Sohan
Lal v. Union of India [AIR 1957 SC 529] held that a writ of mandamus or
an order in the nature of mandamus is not to be made against a private
individual. A writ of and/or in the nature of mandamus normally is
issued asking a person to do a particular thing which is in the nature of
his public duty.
14. Apart from the decision in Sohan Lal [AIR 1957 SC 529] ,
subsequently in Mohd. Hanif v. State of Assam [(1969) 2 SCC 782] a
three-Judge Bench of this Court explaining the general principle relating
to the High Court’s jurisdiction under Article 226 held that the
jurisdiction of the High Court is extraordinary in nature and is vested in
7the High Court not for the purpose of declaring the private rights of the
parties but it is conferred for the purpose of ensuring that the law of the
land is implicitly obeyed and that the various tribunals and public
authorities are kept within the limits of the jurisdiction (see SCC p. 786,
para 5).
15. The learned Judges in Hanif case [(1969) 2 SCC 782] reiterated the
principle further by saying : (SCC p. 786, para 5)“5. … In a proceeding under Article 226 the High Court is not
concerned merely with the determination of the private rights of
the parties; the only object of such a proceeding under Article
226 is to ensure that the law of the land is implicitly obeyed
and that various authorities and tribunals act within the limits
of their respective jurisdiction.”
16. The learned Judges in Hanif [(1969) 2 SCC 782] referred to the
decision of this Court in T.C. Basappa v. T. Nagappa [AIR 1954 SC 440 :
(1955) 1 SCR 250] and held that : (Hanif case [(1969) 2 SCC 782] , SCC
p. 786, para 5)“5. … It is obvious that the remedy provided under Article 226 is
a remedy against the violation of the rights of a citizen by the
State or statutory authority. In other words, it is a remedy in
public law.”
19. Same caution was sounded in a subsequent decision of Mohan
Pandey v. Usha Rani Rajgaria [(1992) 4 SCC 61 : AIR 1993 SC 1225]
wherein the learned Judges held that a regular suit is the appropriate
remedy for settlement of disputes relating to property rights between
private persons. Remedy under Article 226 of the Constitution is not
available except where violation of some statutory duty on the part of a
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statutory authority is complained of. The Court made it very clear by
making the following observations : (SCC p. 63, para 6)
“6. … The High Court cannot allow the constitutional jurisdiction
to be used for deciding disputes, for which remedies, under the
general law, civil or criminal, are available. It is not intended to
replace the ordinary remedies by way of a suit or application
available to a litigant. The jurisdiction is special and
extraordinary and should not be exercised casually or lightly.”
21. Rather recently in P.R. Murlidharan v. Swami Dharmananda
Theertha Padar [(2006) 4 SCC 501] P.K. Balasubramanyan, J. (as His
Lordship then was) in a concurring but a separate opinion held that it
would be an abuse of the process for the petitioner to approach the writ
court seeking for a writ of mandamus directing the police authorities to
protect his property without first establishing his possession in an
appropriate civil court. The learned Judge made very pertinent
observations by saying that : (SCC p. 506, para 17)
“17. … The temptation to grant relief in cases of this nature
should be resisted by the High Court. The wide jurisdiction
under Article 226 of the Constitution would remain effective and
meaningful only when it is exercised prudently and in
appropriate situations.”
The same has been consistent view of this Court in Maharani Mondal @
Biswas vs. State of West Bengal reported in 1999 SCC OnLine Calcutta 387; CPA
Consultancy Services Private Limited, Employees Union vs. CPA Consultancy
Services Private Limited 1994 SCC OnLine Calcutta 77, Mohinul Haque @
Mohinur Haque Chowdhury vs. State of West Bengal 1995 SCC OnLine Calcutta
369.
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Having regard to the catena of judgments which have settled the issue
relating to a private dispute and interference of the police authorities without
being aided by an order of the court, I am of the view that the police authorities
exercised their restraint in not interfering themselves in a private dispute and has
only taken into consideration the issue relating to alleged offences being
committed.
Consequently the act and action of the police authorities were in
consonance with the provisions of law and the over action as has been
complained by the petitioner is not substantiated. The practice of invoking Article
226 of the Constitution of India when the civil court is already in seisin of the
issue is in gross violation of the mandate of the Hon’ble Apex Court. The
petitioner has circumvented the provisions of the Civil Procedure Code and
attempted to invoke the jurisdiction under Article 226 of the Constitution of India
for the purposes of depriving the civil court from exercising its jurisdiction
although the petitioner himself has approached the civil court for establishment
of his right by way of praying for permanent injunction.
Having considered that the manner in which the provisions of this Court
under Article 226 of the Constitution of India has been invoked, I am of the view
that the same is in gross ignorance of the provisions of law and the same is with
the oblique purpose of abusing the process of law. Consequently, the writ petition
being WPA 14585 of 2025 is dismissed.
There will be no order as to costs.
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Affidavit of service filed by the petitioner be kept with the record.
Report submitted by the State be kept with the record.
All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
Urgent photostat certified copy of this judgment, if applied for, be supplied
to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)