TUSTU PADA BERA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner claims to be the absolute owner of a portion of premises No. 18/2, Panchkori Mohanta Lane, Salkia, P.S. Malipanchghora, District Howrah by virtue of a registered deed of partition dated 12.7.1982, to which, inter alia, the respondent Nos. 7, 9 and 10 are signatories. The respondent No. 7, it is claimed by the petitioner, with an intention to purchase the demarcated portion of the petitioner's property had approached him with a request to transfer the same on a nominal consideration. The petitioner not having agreed to his proposal, the respondent No. 7 has been creating disturbances daily thereby creating a situation so that the petitioner has no other alternative but to sell his demarcated portion to the said respondent. The petitioner apprehending that the private respondents would commit cognizable offences had approached the Executive Magistrate by filing an application under Section 144(2) of the Code of Criminal Procedure giving rise to M.P. Case No. 1204/06. On consideration of the said application, the Executive Magistrate, Sadar. Howrah had passed an order on 23.11.2006 directing the Officer -in -Charge, Malipanchghora Police Station to cause a local enquiry after serving notice to the concerned parties with a further direction to maintain peace and to ensure that no illegal act is committed by any party. The police report was directed to be filed on 9th February, 2007.

(2.) IT is the grievance of the petitioner that despite communication of the said order to the concerned Officer -in -Charge on 24.11.2006, the private respondents are continuing to threat the petitioner and his family members with dire consequences and that the police has not taken any step and has also not made any attempt to stop such activities and their passive action is encouraging the private respondents to commit cognizable offence at any point of time.

(3.) MR . Guha, learned Counsel for the State has submitted that the pleadings in the petition are inconsistent; while in paragraph 4 of the petition, the petitioner has averred that the petitioner has sold his property to the respondent No. 7, in paragraph 7 thereof it is his case that the private respondents are obstructing him in repairing his premises. He further submits that it is out and out a private dispute between the petitioner and the respondent No. 7 which has been made the subject -matter of adjudication by the Writ Court and, accordingly, the writ petition is not maintainable. He further submits that the facts pleaded in the petition are too vague to warrant an order from the Writ Court for providing police assistance. Lastly, he submitted that even if the Officer -in -Charge of the local police station is inactive, that would not afford a cause of action to the writ petitioner for filing a writ petition and he should be directed to pursue his remedies under the Code of Criminal Procedure, 1973.