Tarun Kumar Mitra vs State of West Bengal and Others

Dipankar Datta, J.—The petitioner, an octogenarian, allegedly, has been forced to invoke the writ jurisdiction of this Court feeling highly aggrieved and thoroughly frustrated by physical and mental torture inflicted on him by the respondents 5 and 6, his son and daughter-in-law respectively. He has claimed the following relief:

a) A Writ of and/or Writs in the nature of Mandamus commanding the concerned Respondent their agents and/or successor-in-office to allow the Petitioner to enjoy and use his all the properties including his flat at P-247, C.I.T. Road, P.S. Phoolbagan, Calcutta � 700 054 (2nd and 3rd floor) with Garage and Servant''s quarters in the ground floor after recovery of the possession of the said flat from the unauthorised occupation of Respondent Nos. 5 and 6 and their associates forthwith;

b) A Writ of and/or Writ in the nature of Mandamus commanding the concerned Police Respondent Authorities to see that the Petitioners peaceful living is not disturbed in any way by any of the Respondents and/or their associates and if necessary by rendering Police Posting at the residence of the Petitioner at his cost and to act according to law;

c) A writ of and/or Writs in the nature of Prohibition prohibiting the concerned Respondents from creating mental and physical torture to the Petitioner and not to disturb him from leading his peaceful and smooth living at this old age.

d) A Writ of and/or Writs in the nature of Certiorari directing the concerned Respondents to certify, transmit and to produce the relevant records of the case before this Hon''ble High Court at the time of hearing so that conscionable Justice may be administered in the matter;.

It may be placed on record that hearing of the writ petition was fixed in chamber to avoid embarrassment of the parties and to explore, through mediation, the possibility of ending the acrimonious relationship between a father and a son, which I considered to be most undesirable. They were given a hearing separately. In course of hearing, the petitioner and the respondent 5 levelled diverse accusations against each other which were in bad taste. I did not want the parties to wash their dirty linen in public and, therefore, decided against inviting affidavits. The only positive aspect that emerged was the offer of the respondent 5 to maintain the petitioner by providing him whatever he needs. But such offer was quickly followed with a caveat. The condition imposed by the respondent 5 was that the petitioner may be directed not to bring any outsider and stay with him in the flat presently being occupied by both of them. I had enquired from the petitioner, prior to the respondent 5 being heard, whether he would be satisfied if I persuade the respondent 5 to maintain him. He flatly declined and submitted that he would not like to survive on the mercy of the respondent 5. He only wished to have his son and daughter-in-law vacate the flat belonging to him, which the respondent 5 refused asserting his right in his grandfather''s property. Both parties seemed adamant in their stands and a solution was not in sight. The petitioner had been apprised of apparent weakness in his case, when he urged me to decide the issue raised in the petition according to law.

I have, therefore, no option but to consider the petitioner''s claim on merits.

It is evident from a perusal of the petition that the petitioner has instituted a civil suit for eviction being T.S. 140/2000 against the respondent 6 and the same is pending before the Civil Court at Sealdah. It also appears that the petitioner earlier had the occasion to invoke the writ jurisdiction of this Court by filing W.P. No. 20983(W) of 2007. The said writ petition was dismissed on 7.12.2007 by a learned Judge of this Court by recording, inter alia, the following order:

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After considering the submissions and upon perusing the writ petition, I am of the opinion that the instant writ petition has been essentially grounded on what appears to be a dispute, civil in nature.

Considering this aspect of the matter, there is little scope for interference by the writ Court in exercise of its powers under Article 226 of the Constitution of India.

In such circumstances, the writ petition stands dismissed.

However, this order of dismissal will have no effect on the pending civil proceedings and all other proceedings in other courts of law. The writ petitioner will also be entitled to take steps in accordance with the Code of Criminal Procedure, in the event a complaint is not looked into by the police authorities.

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I have compared the grounds of the earlier writ petition and the prayers thereof with those urged in support of the present petition as well as the relief claimed. The grounds and the prayers are substantially the same. Having regard to the earlier order of dismissal noted above, the present petition is barred by res judicata and, therefore, not maintainable.

That apart, since a civil suit at the instance of the petitioner is pending for eviction of the respondent 6, the present proceeding appears to be a parallel remedy being pursued by the petitioner seeking her eviction through the process of the Court of Writ. That is not permissible in law.

Mrs. Roy, learned advocate for the State on an earlier date apprised me that on the basis of the complaint lodged by the petitioner, a case u/s 323/341, Indian Penal Code has been registered.

Allegation of inaction of the police, thus, stands negated. Law shall take its own course and proceedings shall be conducted and concluded strictly according to law without being influenced by the result of this petition.

The writ petition stands dismissed without any order for costs. However, this order of dismissal shall also not affect the pending proceedings before the civil court.

Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.