Dolotun Nessa Bibi & Ors. vs State Of West Bengal & Ors.

The writ petitioners have come up before the Court in a second round of attempting to use the writ court an alternative for the appropriate civil or

criminal court. Admittedly, there is dispute between the writ petitioners and the non-state respondents who have been arrayed as the respondent nos.5

to 11. The case of the writ petitioners as made out in paragraph 16 of the writ petition is as follows:

“Your petitioners submit that the petitioners are the lawful owners of the land should be allowed to use and enjoy their land by resisting illegal

obstruction of the private respondents by removing the illegally constructed wall for free ingress and egress from the demarcated common passage but

the private respondents without having any right, title and interest illegally and unlawfully obstructed the petitioners to use the said land by taking the

law on their hand by constructing a wall due to inaction on the part of the respondent police authorities as the respondent police authorities sat tight

over the matter in spite of written complaints were lodged by the petitioners, thus kind interference of this Hon’ble Court is highly warranted under

Article 226 of the Constitution of India.â€​

The writ petitioners further rely upon an order of this Court in the first round of litigation passed on January 27, 2015 in W.P. No. 273 (W) of 2015

[Dolotun Nessa Bibi Vs. The State of West Bengal & Ors.]. By such order the learned co-ordinate Bench had recorded that as against the allegations

of police inaction, the State of West Bengal had submitted that after the complaint was lodged, the matter was investigated and a charge-sheet had

been submitted.

Only on that basis no order was passed on the writ petition. The writ petitioners now say that this order shows that the question of a public law

element existing in the matter cannot any longer be negated because of the earlier order passed by the writ court, which did not dismiss the earlier writ

petition on the ground of the same being precluded by the existence of the adequate alternative remedy.

I am afraid that I cannot read in such a volume of meaning into the lines â€" Since steps were taken which culminated in the submission of charge-

sheet, no order was passed on the writ petition. I would rather construe the lines aforesaid as a gentle manner by which dismissal of the writ petition

on the ground of an existing elective statutory alternative remedy was avoided.

I reiterate that where the dispute is of the nature mentioned in paragraph 16 of the writ petition and this is a matter which requires, adjudication on

evidence, as to who did what to whom, and where already the writ petitioners have not only gone to the police but after filing of the charge-sheet have

presumably been actively involved in the matter of prosecution of the private respondents and further where there exists a perfectly adequate civil

remedy for recovery of possession or for removal of obstruction to the ingress and egress of the writ petitioners into and from their own lands, the

Court under Article 226 of the Constitution of India cannot be made adjudicate on such property disputes between party and party. The jurisdiction of

Article 226 of the Constitution of India was not created to bye-pass the usual statutory remedies, which are effective.

I find no case made out in the writ petition that the private respondents are giants and the writ petitioners are pigmies and they have to be brought to

the same level by the high prerogative writ jurisdiction. Accordingly, I decline to exercise the extra-ordinary power of writ jurisdiction under Article

226 of the Constitution of India. I, therefore, dismiss the writ petition but considering the arguments of Mr. Bhattacharyya in persisting with his claim, I

make it clear that the dismissal of this writ petition shall not prevent his clients from adopting any other statutory and/or alternative remedy as he

would be advised in accordance with law. Nothing contained in this order shall be deemed a decision or finding on merits in respect of the

dispute.There will be no order as to costs. Â