Sheta Dutta & Ors. vs Birpur Fishermen’s Co-Operative Society Ltd. & Ors.

While hearing the application for stay (C.A.N. 2469 of 2018), we have heard the parties on the merits of the appeal with their consent and propose to

dispose of the same here and now. A writ petition [W.P. 26796(W) of 2017] was disposed of by a learned Judge of this Court by an order dated

January 12, 2018 recording, inter alia, as follows : -

“By virtue of a writing dated December 12, 2011 the petitioner was granted a lease of a waterbody at a lease rental of Rs.12,100/- for the period

till March, 2018. The period of lease is still subsisting. The State is bound to act in terms of the lease. The State will, therefore, accept the lease rentals

in terms of the writing dated December 12, 2011 from the petitioner, in accordance with law.â€​

The said order also recorded that the title in respect of the immovable property in question (a beel) is the subject matter of a pending proceeding

before the West Bengal Land Reforms and Tenancy Tribunal (hereafter ‘the tribunal’) but the lease is independent thereof and therefore, it

was a fit case for interference by the writ court. However, it was made clear that the pending proceedings before the tribunal shall not be affected

and that the tribunal shall dispose of the proceedings before it in accordance with law without being influenced by any observation made therein.

The said order is the subject matter of this intra-court writ appeal at the instance of the added respondents in the writ petition, who claim that the

‘beel’ has been settled in their favour and they are in actual possession thereof. It has been contended by Mr. Bhattacharya, learned advocate

for the appellants that the right of possession in respect of the ‘beel’ in question being disputed and the writ petition being one essentially arising

out of alleged police inaction, the learned Judge erred in the exercise of jurisdiction in directing the State to accept lease rentals from the writ

petitioners as if the writ petitioners were the lessees in respect of the ‘beel’. It is his further submission that the dispute as to who is the lessee

in respect of the ‘beel’ is the subject matter of the proceedings pending before the tribunal and the tribunal having the jurisdiction in terms of the

Act to decide the dispute before it, the learned Judge exceeded his jurisdiction in recording the findings he did and that too, on a writ petition arising out

of alleged police inaction.

Appearing for the writ petitioners, Mr. Bose, learned advocate contended that the dispute raised by the appellants in respect of settlement of the

‘beel’ in favour of the writ petitioners is a sham dispute and that submissions made on behalf of the State before His Lordship on earlier

occasions would suggest that the State has accepted the writ petitioners as the lessees in respect of the ‘beel’. According to him, the State

having leased out the ‘beel’ in favour of the writ petitioners and the writ petitioners having expressed their willingness to pay the lease rentals

upon proper user of the ‘beel’ by pisciculture, it would amount to a loss of State revenue if the writ petitioners were to fail in making payment of

lease rentals; hence, by directing the State to accept lease rentals from the writ petitioners, the learned Judge did not commit any error of jurisdiction.

The appeal being thoroughly misconceived, Mr. Bose urged that the same ought to be dismissed. We have heard learned advocates for the parties and

perused the materialson-record.

The writ petitioners appear to have approached the Officer-in-Charge, Nakashipara Police Station with a written complaint dated September 7, 2017.

The allegation of the writ petitioners was that certain miscreants without having the authority of law were interfering with their possession of the

‘beel’ and catching fish and the writ petitioners having protested, they were threatened with dire consequences. Prima facie, the complaint

discloses an offence of theft and criminal intimidation. Alleging that the police had not taken any action on such complaint, the writ petitioners invoked

the writ jurisdiction of this Court and prayed for, inter alia, the following relief :-

“a) A writ of or in the nature of Mandamus do issue commanding the respondents to show cause as to why the Jalkar/Water body settled to the

petitioner shall not be protected and petitioner shall not be given security for cultivation of the fishes in the said water body. b) A writ of or in the

nature of Mandamus do issue commanding the respondents, their agents and servants particularly the respondent nos. 2 to 5 to protect the lives and

the properties of the petitioners and secure the possession of the Jalkar of petitioners which has been settled to the petitioners.†The learned Judge

prior to disposing of the writ petition by the impugned order had passed an order dated November 7, 2017 on the writ petition, the first paragraph

whereof reads as follows :-

“The grievance of the petitioner is that an alleged complaint dated September 9, 2017 regarding fishery has not been looked into by the police

authorities.â€​

Admittedly, no FIR was registered at Nakashipara Police Station on the basis of the complaint dated September 7, 2017. We have not been shown

any document, which would reflect the writ petitioners’ attempt to bring the alleged inaction of the officer-in-charge to the notice of the

Superintendent of Police concerned for taking appropriate action to register an F.I.R. in terms of the provisions contained in Section 154(3) of the

Code of Criminal Procedure (hereafter the Cr.P.C.). Additionally, the writ petitioners admittedly did not approach the relevant magistrate either under

Section 156(3) of the Cr.P.C. or under Section 200 thereof; instead, they rushed to the writ court seeking extraordinary discretionary relief on October

31, 2017 and essentially prayed for orders for protection of their possession of the ‘beel’. In a catena of decisions, the Supreme Court has

sounded caution that a writ court ought not to entertain a petition under Article 226 of the Constitution of India on the allegation that the police has not

registered an F.I.R.; the proper course would be to relegate the complainant to pursue the remedy made available by the Cr.P.C. One of the decisions

of the Supreme Court wherein such proposition has been laid down is reported in (2004) 7 SCC 768 (Gangadhar Janardan Mhatre â€"Vs- State of

Maharastra) .

It has also been laid down by the Supreme Court in its decision reported in (2006) 4 SCC 501 (P. R. Muralidharan â€"Vs- Swami Dharmananda

Theertha Padar) that a writ court ought not to interfere in disputes regarding claimed possession of an immovable property by a party and his

allegation that the police has not extended help and assistance to protect such possession. Paragraph ‘19’ of the decision in P.R.

Muralidharan(supra) is relevant and is quoted below :-

“A Writ for ‘Police Protection’ so-called, has only a limited scope, as, when the court is approached for protection of rights declared by

decree or by an order passed by a Civil Court. It cannot be extended to cases where rights have not been determined either finally by the Civil Court

or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.†In view of such authoritative

decisions of the Supreme Court on the point, we are of the considered opinion that the learned Judge ought not to have entertained the writ petition,

which essentially centers around settlement and possession of the ‘beel’, and in respect whereof also, proceedings are already pending before

the tribunal.

Alleged inaction of the police to register an F.I.R. could have been taken care of by granting leave to the writ petitioners to approach either the

Superintendent of Police concerned or the relevant magistrate under the various provisions of the Cr.P.C. It would also have been proper to relegate

the parties to the tribunal for the purpose of a decision on the merits of the rival claims with the only observation that the police, duty bound to protect

the lives of citizens, would take appropriate steps to ensure that as a result of the tension between the parties lives and limbs are not lost.

We, therefore, set aside the order of the learned Judge and leave the private parties to raise their respective claims before the tribunal, which shall

proceed to decide the disputes before it strictly in accordance with law. The Superintendent of Police concerned and his subordinates shall, however,

ensure that there is no breach of peace and tranquility in the locale of the ‘beel’ and that life of one party is not endangered at the instance of

the other. With these observations, the appeal stands disposed of. The application for stay (C.A.N. 2469 of 2018) also stands disposed of in terms of

the aforesaid order.

There shall be no order as to costs. Needless to observe, the tribunal in deciding the proceedings before it shall not be influenced by any

action/decision taken in pursuance of the impugned decision of the learned Judge. Urgent photostat certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.