Biswarup Ghosh And Others vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

Learned counsel for the petitioners submits that the private respondents trespassed upon the property of the petitioners and have been holding Kali

Puja on the said premises without any such permission.

It is submitted that initially an order was passed in a proceeding under Section 145 of the Code of Criminal Procedure in that regard and, pursuant to

the order of the concerned Magistrate, a police report was filed which prima facie shows that there had been an encroachment on the property of the

petitioners. Subsequently, as per the report, the private respondents surrendered and were enlarged on bail.

Learned counsel for the police authorities submits that the present grievance of the petitioners has no nexus with annexure P/11 which is relied on by

learned counsel for the petitioners. It is submitted that, pursuant to the previous complaint, already a First Information Report was registered, on the

basis of which investigation is going on.

Learned counsel for the private respondents submits that Kali Puja is being held on the said property for more than fifty years and some of the

petitioners were functionaries of the club which conducts such Puja. It is submitted that the said Kali Puja is famous in the area, which makes the

property partake the character of a place of worship for the public.

It is further submitted by learned counsel for the private respondents that the reliefs claimed in the writ petition have no nexus with the recent

complaint annexed at page 59 (annexure P/11).

Upon hearing the parties, it is seen that apparently there was a trespass on the property of the petitioners, which is evident from the police report filed

in connection with the proceeding under Section 145 of the Code of Criminal Procedure. As such, the petitioners have a right to rebuild their boundary

wall which was demolished, irrespective of the fact as to who was guilty of such demolition, which is already a subject-matter of a separate

investigation.

It is also found from the complaint in the annexure P/11 at page 59 that the private respondents allegedly kept a bullock cart in the garage of the

petitioners, which vehicle was used to carry the idol of Kali thereto. This, according to learned counsel for the petitioners, amounts to criminal trespass

and the police ought to have taken steps thereon.

The right to protect one’s own property is inbuilt and implicit in the right to property and right to life guaranteed by the Constitution. Since the

records clearly show that the petitioners are the owners of the property, which proposition is also not disputed by the private respondents, it is

ridiculous to be argued that the private property of the petitioners has partaken the character of a public place of worship, merely by virtue of the so-

called ‘famous’ Kali Puja being held there every year, that too forcibly. It appears that initially the petitioners had permitted the private

respondents ,including the private respondent-club, to hold Kali Puja on their property but have resiled from that position now, which is well within the

discretion of the owners of a property.

As such, the petitioners have every right to reconstruct the damaged wall, irrespective of having lodged a complaint or not regarding that. Since it is

evident from the police report that the petitioners’ land was encroached upon, which proposition is not denied by the private respondents, who

claim that they have the right to perform a Kali Puja there every year, it is incumbent upon the police not only to assist the petitioners in removing the

bullock cart-in-question from the garage of the petitioners, but also to provide police assistance to the petitioners in the event the petitioners face any

hindrance in reconstructing their damaged boundary wall. The technical objection, that no complaint was registered regarding any resistance so far as

the petitioners’ endeavour to reconstruct the boundary wall is concerned, cannot be taken into account since the hands of this Court are wide

enough under Article 226 of the Constitution of India to take care of and to mitigate any violation of fundamental rights of the petitioners. In the

present case, the right to life as well as right to property of the petitioners are palpably threatened in the circumstances as narrated in the writ petition

and the materials annexed thereto.

Accordingly, W.P. No.2806(W) of 2020 is allowed, thereby directing the respondent no.4 to provide police assistance to the petitioners in removing the

bullock cart, which has been kept in the premises of the petitioners by outsiders, from such premises as well as to see that the petitioners do not face

any hindrance in rebuilding their boundary wall. In the event any police picket is necessary for the purpose of ensuring that the petitioners can rebuild

their boundary wall without any hindrance from the private respondents or other outsiders, the petitioners shall be informed by the police about the

costs involved and such costs shall be furnished by the petitioners.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.