GOBINDA CHANDRA HANRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IT is the case of the writ petitioner that he is the lawful owner of the land measuring about 4.625 decimal comprised in R.S.& L.R. Dag No.2041, Khatian No.2871, J.L. No.286 within Mouza -Paikpari, Kolaghat, Purba Medinipur. It is his further case that the said land was originally belonging to the respondent No.10, Smt. Bharati Das, who sold out the said land by a registered Deed of Sale to one Smt. Jayashri Bera from whom the same was purchased by the elder sisters of the writ petitioner, namely, Smt. Mina Rani Samanta and Smt. Molina Maity, and subsequently by a registered Deed of Gift, in the year 2012, the entire property was bequeathed to the writ petitioner. It is further contended that from the registered Deed of Gift, it will appear that a barampath has been lying and running over the said plot from the dwelling house of the writ petitioner to Jasar Road through the southern part of the respondents house. It is submitted that after obtaining the said plot of land by a Deed of Gift, the writ petitioner constructed a residential house thereon and has been using the said barampath as his way to the main road, i.e., Jasar Road. It is further submitted that on 2nd April, 2012, the private respondents with a view to dispossess the writ petitioner from his residential house as well as to create obstruction to his free ingress and egress, assembled at the spot being armed with wooden stick and iron rod and suddenly attacked his family members but on being resisted by the petitioner's wife, they assaulted her and left the place.

(2.) IN this regard, a complaint was lodged to the respective authorities, namely, the Pradhan, Kolaghat -II Gram Panchayat, Block Development Officer, Kolaghat Block and Sabhapati, Kolaghat Panchayat Samity. He further submitted that thereafter again on 5th August, 2013, the private respondents encroached the passage (Barampath) by Hogla with the help of bamboo and thereby obstructed the writ petitioner's free use of the same. Then it is pointed out that having regard to such facts, the petitioner immediately filed an application under Section 145(2) of the Code of Criminal Procedure before the learned Sub -Divisional Magistrate, 2nd Court, Tamluk for appropriate action against the private respondent, when the learned Magistrate by his order passed on 12th August, 2013, amongst others, directed the I.C., Kolaghat Beat House to remove the obstruction from the said plot. In this regard, he invited the court's attention to the court's order, Annexure -'P -5' to this writ application. He then submitted that in spite of such order, till date, the police has not taken any action for removal of the said obstruction and were sitting tight over the matter and consequently, the petitioner has been facing very serious inconvenience in his free ingress and egress through the said passage. He also drew the attention of the court to the Enquiry Report submitted by the B.L.&L.R.O., Kolaghat, which is at page -89 to this writ application and submitted such report completely supported the case of the writ petitioner. He further submitted that as enjoined upon under Section 23 of the Police Act, the police authorities are duty bound to carry out the orders lawfully passed by a competent court of law. Accordingly, he prays that a Writ in the nature of Mandamus be issued directing the police to strictly carry out the order passed by the learned Sub -Divisional Magistrate, 2nd Court, Tamluk.

(3.) ON the other hand, Mr. Anami Sikdar, the learned Counsel appearing with Mr. Sakya Sen and Mr. Tapas Ballav Mandal, for the State, opposed this writ application and it is submitted that the order, for enforcement of which, the writ petitioner has come up before this Court, on the face of it, is an illegal order. In this regard, Mr. Sikdar draws the attention of this Court to the provision of sub -Section (4) of Section 145 of the Code of Criminal Procedure and submitted that the court on being satisfied on the police report, can very well initiate a proceeding under Section 145 of the Code of Criminal Procedure but no final order can be made without first giving the second party an opportunity of hearing and without recording of evidence, which is the mandate of law.