Dhananjoy Mondal and Others vs State of West Bengal and Others

Jayanta Kumar Biswas, J.—The petitioners took out this writ petition alleging that police authorities were not giving necessary help for fencing their own land. They have alleged that the seventh to tenth respondents were causing obstruction, and hence they needed police help.

The seventh to tenth respondents have filed an opposition. Their Counsel submits that in the name of fencing the petitioners actually wanted to enroach upon land owned and possessed by his clients. He further submits that a second appeal presented by his clients before this Court is awaiting admission. His contention is that since by filing this writ petition the petitioners sought to execute a decree of a Civil Court granting permanent injunction, in view of provisions in Order 21 Rule 32 of the Code of Civil Procedure, 1908, their remedy, if any, is only by way of execution of the decree before the competent Civil Court. In support of his contention he relies on a Single Bench decision of this Court in Jayanta Kumar Banerjee Vs. UCO Bank and Others, .

The petitioners filed a Title Suit No. 205 of 1980 in the fifth Court of the Munsif, Howrah. The seventh to tenth respondents were defendants in that suit. The petitioners prayed for declaration of their title and permanent injunction. On contest that suit was decreed on May 31st, 1991. The petitioners'' absolute right, title and interest in the suit land (mentioned in the schedule to the plaint) were declared. A decree was made for permanent injunction restraining the defendants in the suit from entering into the suit land and also from disturbing the petitioner''s peaceful possession thereof. First appeal preferred by the seventh to tenth respondents was dismissed by judgment and order dated July 20th, 1995. After presenting the second appeal they did not take any steps for its admission hearing.

I do not see how it can be said that with the subject-matter of the writ petition the petitioners ought to have approached the Executing Court. It is not their case that the decree for permanent injunction made by the Civil Court was disobeyed by the seventh to tenth respondents. The Civil Court did not make a decree for injunction restraining the seventh to tenth respondents from causing any obstruction to construction of any boundary wall or fence. Hence, there was no scope for the petitioners to file an execution application for the purposes for which the writ petition was taken out. The Single Bench decision relied on has no manner of application to the present case.

There is no dispute that alternative statutory remedy available before the Civil Court should be availed of by a party, instead of approaching the Writ Court with pure civil disputes between private parties. That is not the situation here. In this case the petitioners wanted to protect their land regarding which the Civil Court declared their absolute right, title and interest, and for the purpose they requested the police authorities to give them necessary help. In my view, the police authorities ought to have extended necessary help so that the petitioners might fence their land avoiding breach of law and order. It is apparent that there was every likelihood of breach of peace, since the seventh to tenth respondents were admittedly resisting construction of the fence by the petitioners. I think in such a case as this the lawful owner of an immovable property can approach the Writ Court.

For these reasons, I dispose of the writ petition ordering that the Officer -in-Charge of Sankrail Police Station shall give necessary police help at the expenses of the petitioners, so that they may raise boundary wall or fence on the land regarding which the decree was made. The parties will be free to take help of surveyors. Needless to say that construction, if any, made by the petitioners on the basis of this order, shall be subject to any order that may be made by the competent Civil Court in any case including the second appeal. Necessary help in terms of this order shall be given by the police authorities within a fortnight from the date of receipt of the application therefor. There shall be no order for costs in the case.

Urgent certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.