Sri Harekrishna Pal & Ors. vs State of West Bengal & Ors.

Protik Prakash Banerjee, J.

I have gone through the records, including the report of the learned special officer appointed by this court. In this case, in which is sought that the

police authorities take steps in accordance with an order of the civil court to ensure that the earlier orders of the civil court including that of police help

are not made infructuous, the following facts are noted â€

a) The writ petitioners claim a right of easement and that too of necessity as against the non-State respondents and the writ petitioners have taken the

nonState respondents to court in a civil suit. In the civil suit the writ petitioners made out a prima facie case to the extent of persuading the learned

civil court to pass an interlocutory order (Order No.2) dated February 16, 2018, inter alia, to the above fact:â€

“On perusal of the documents it appears that the plaintiff has shown a prima facie case in his favour and that he has prima facie right, title to enjoy

the said passage. Accordingly, I am of the view that an interim injunction is required to be granted at the stage of the suit. Hence it is order that the

prayer for interim injunction be and the same is allowed at this stage. That the defendants are restrained from causing any blockage over the C

schedule property of the plaint till 22.03.2018.â€​

b) The said interim order was extended from time to time, and I have satisfied myself that the said interim order is still in existence. The defendants in

the suit attempted to obtain a mandatory injunction so that they could construct a boundary wall which would negate the very purpose of the suit filed

by the plaintiffs/writ petitioners. This was rejected. However, in an earlier order passed by me (June 13, 2018) it had not been pointed out to me that

the application for mandatory injunction made by the defendants had been rejected. I had, therefore, been amazed how, while dismissing an application

under Order 39 rules 1 and 2 CPC, the interim order could have been further extended. This has now been clarified by Mr Basu, learned senior

advocate assisted by Mr Ghosh appearing for the petitioners.

c) So that order of the learned civil court could be complied with a species of police help was granted by the learned civil court by its order being No.4

dated February 21, 2018. Despite aforesaid, the boundary wall was constructed, and the police did not effectively grant assistance to the writ

petitioners for the purpose of enforcing the order of the learned civil court.

d) The report of the learned special officer at para.4 to which no exception appears to have been taken clearly indicates as follows:â€

“Upon reaching the spot, I met Sri Harekrishna Pal, who showed me the entrance of the subject premises, where the boundary wall had been

raised by the private respondents, namely Sri Narayan pal and as a consequence thereof, a gap of about 1½ feet had been left between the

boundary walls of the petitioners and the private respondents. Thereafter, I met Sri Narayan Pal, who informed me of an arrangement initially agreed

upon between him and Sri Harekrishna Pal, wherein it was agreed that the latter would leave around 1 foot of land out of the total land belonging to

Sri Harekrishna Pal which is lying situate in the back portion of the building of Sri Narayan Pal and in exchange, Sri Narayan Pal would relinquish

approx. 6 feet of his land near the entrance of the subject premises, where presently the boundary wall stands.â€​

Accordingly, it appears to me that the non-State respondents, who are not appearing today and had, in fact, not appeared at any time after the report

of the special officer was made available to them, on July 9, 2018 have attempted to make the orders of the civil court infructuous and have somehow

been able to persuade the police authorities for not allowing the writ petitioners to get the fruits of the litigation even at the interlocutory stage.

While normally this court is reluctant to interfere in a case where the parties are approaching a civil court for adjudication of their rights, this is a case

where the learned civil court has unambiguously by an interim order determined that prima facie the writ petitioners are entitled to easement of

necessity for the purpose of ingress and egress and they have a right over the common passage. 1½ ft. as appears from the report, which admittedly

has been allowed as gap between the boundary walls cannot be sufficient for ingress and egress of any person of normal girth and the court can take

judicial notice of that fact. It is not as if the hands of the writ court under Article 226 are prevented by the Constitution of India from reaching

injustice, merely because the bogey of civil court is waved before it. Even under the limited scope of a writ for police protection as it is so-called, in an

appropriate case the writ court can pass orders for protection of the rights held to exist unambiguously even at a prima facie stage so long as the writ

is issued or command is in furtherance of an order passed by the civil court. I am fortified by a decision in the case of P.R. Murlidharan & Ors. v.

Swami Dharmananda Theertha Padar & Ors. reported in (2006) 4 SCC 501 at para.19 for this general proposition relied upon on behalf of the

petitioners.

Accordingly, especially in view of there being no exception taken by the non-State respondents, there shall be an interim order directing police

authorities to cause demolition of the boundary wall constructed by the fourth to tenth respondents which has obstructed ingress and egress in respect

of the common passage relating to which the learned civil court has held that the writ petitioners have been able to make out a prima facie case in

their favour and prima facie right title to enjoy the said passage. Such demolition shall be effected by adequate number of armed police by using all

reasonable force. If there is any obstruction caused to either act of demolition or the enjoyment by the writ petitioners, the police shall take those who

obstruct into custody, arrest them and prosecute them in accordance with law.

If the officer in charge of the local police station finds the personnel at his disposal to be inadequate, in such case the Hooghly Superintendent of

Police shall render all assistance along with adequate number of police. Such police help shall however be subject to the deposit of costs which the

officer in charge of the police station shall intimate the writ petitioners. The act of demolition of the boundary wall shall be made within a period of

seven days from the date of communication of this order.

Mr Ghosh appearing for the petitioners assisting Mr Basu submits, on instructions, that the petitioners have already paid Rs.14,000 to the special

officer. Accordingly, the petitioners are directed to pay a further amount of Rs.5,000 as full and final amount due to learned special officer which the

special officer is requested to take as complete satisfaction of the remuneration. With the above directions, the writ petition stands allowed. The

rectified police report submitted by the State is taken on record which shall form part of the record. No costs. Certified website copy of this order, if

applied for, shall be given to the parties within three days from date.