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Brojendra Nath Biswas Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 14290 (W) of 1980
Judge
Reported inAIR1981Cal220
ActsConstitution of India - Article 226; ;Code of Criminal Procedure (CrPC) , 1974 - Section 144(2); ;Code of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantBrojendra Nath Biswas
RespondentThe State of West Bengal and ors.
Appellant AdvocateAsoke Kumar Banerjee, Adv.
Respondent AdvocateRamapati Roy, Adv.
DispositionApplication allowed
Cases ReferredRavapati Audemma v. Po
Excerpt:
- .....issue, protected, the rule was obtained on the day as mentioned above. at the time of issuing the rule, the interim order as mentioned hereinbefore, was at first issued for a limited period, with liberty to the petitioner to apply for extension of the same, on the same application, on notice to the respondents. it appears that on 26-11-30, respondents now appearing through mr. ramapati roy, appeared and on their prayer the matter was adjourned for two weeks and it was also directed that the interim order as issued, would continue in the meantime. the present application for vacating the interim order was filed on 22-1-81 and the same was finally fixed for hearing on the date, when i take up applications viz., on tuesday last. on that date, on the prayer of mr. banerjee, the case was.....
Judgment:
ORDER

Manas Nath Roy, J.

1. This Rule with the corresponding interim order directing respondents Nos. 2 and 3 viz., Superintendent of Police Alipore and Officer-in-Charge, Canning Police Station respectively, to protect the fishery viz., Moukhali Fishery of Police Station Canning and for immediate posting of Police picket, was obtained on 13-10-1980.

2. The present application for vacating the interim order, has been filed by respondents Nos. 4, 7, 12, 15 and 17 in the Rule.

3. The fact, on which the Rule and an interim order as mentioned hereinbefore, was obtained, will have to be stated. It is the case of the petitioner that he is the sole proprietor of Moukhali Co-operative and has been conducting pisciculture at Village Moukhali, Police Station Canning. The petitioner has stated further that he instituted a Title Suit, being No. 25 of 1977, in the Court of the learned Subordinate Judge, 6th Court, Alipore, for interim order of injunction against respondents Nos. 5 to 21 and the learned Judge was pleased to grant such order of injunction and thereafter, on March 27, 1978, the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was heard and was rejected.

4. Against such determination, an appeal was taken and in the appeal, the learned Additional District Judge, was also pleased to refuse to grant interim order of injunction, as was asked for. Then, an appeal was taken to this Court,wherein Civil Rule No. 968 (M) of 1978, was granted and by the said Rule, the respondents Nos. 5 to 21 herein, were restrained by an interim order of injunc-tion from interfering with and or disturbing the possession or damage the fishery, till the disposal of the Rule or till the disposal of the application for interim order, as was pending before the learned Court below.

5. The said Civil Rule was made absolute on 1-9-78. It should also be noted that subsequently, the learned Additional District Judge, 13th Court; Alipore, also allowed the pending appeal and restrained the respondents Nos. 5 to 21 herein, from interfering with the plaintiff's possession of the suit property, till the disposal of the suit. These aspects or facts, are not in dispute.

6. The petitioner has alleged that the respondents concerned or as mentioned hereinbefore, having failed in their attempts to interfere with his possession, took the help and assistance of strangers and anti-social elements, for the purpose of dispossessing him from the fishery and against such threat, a proceeding under Section 144(2) of the Code of Criminal Procedure, being M. P. Case 921 of 1980 (Brojendra Nath Biswas v. Saukat Pur-kait), was initiated, before the learned Executive Magistrate, Alipore, 24 Parganas. In that proceedings, on October 6, 1980 the said learned Executive Magistrate, made an order directing the Canning Police Station, to enquire and report by 13-11-80 and also directed the authorities, that if necessary, the Officer-in-Charge concerned, should afford due protection to the petitioner, by posting police picket, at the cost of the petitioner. It is the further allegation of the petitioner that even in spite of such order, no help or assistance was given to him and as such, he approached the authorities concerned for police picket, but even then, nothing was done by such authorities. It has been categorically averred that even in spite of the order made in the Criminal Proceeding, the respondents Nos. 2 and 3 as mentioned above, have neither rendered any assistance to the petitioner nor have discharged their statutory obligations to protect the interest of the fishery, which according to the petitioner, would mean gross negligence on the part of those respondents. He has further stated that by such inaction or inability as mentioned above, those respondents have flagrantly violated theprovisions of law and have absolutely failed to discharge their statutory obligations under the relevant rules and regulations. It is under those circumstances and in view of the fact that the petitioner was not afforded due opportunities to have the properties in issue, protected, the Rule was obtained on the day as mentioned above. At the time of issuing the Rule, the interim order as mentioned hereinbefore, was at first issued for a limited period, with liberty to the petitioner to apply for extension of the same, on the same application, on notice to the respondents. It appears that on 26-11-30, respondents now appearing through Mr. Ramapati Roy, appeared and on their prayer the matter was adjourned for two weeks and it was also directed that the interim order as issued, would continue in the meantime. The present application for vacating the interim order was filed on 22-1-81 and the same was finally fixed for hearing on the date, when I take up applications viz., on Tuesday last. On that date, on the prayer of Mr. Banerjee, the case was directed to be adojurned for a week. Mr. Banerjee has stated that after such mentioning, he informed Mr. Roy about the order as made by this Court. The following day, Mr. Roy mentioned the matter and stated that because of the interim order, which is pending and for vacating of which, the application has been filed by his clients, which again has been adjourned, his clients have suffered and are suffering. There were claims and counter-claims over the manner in which case was mentioned and as such, even in spite of the predicament in which Mr. Banerjee has been placed, because of the death of the father of his learned instructing Advocate and considering the urgency of the matter, I had to take up this application for consideration. The facts which are admitted have been mentioned hereinbefore.

7. Mr. Roy appearing in support of the application for vacating the interim order, has now produced an order dated December 18, 1980, made in the said M, P. Case No. 921 of 1980, which without any doubt, shows that the petitioner has not proceeded with the said proceedings under Section 144(2) of the Code of Criminal Procedure and as such, the said proceeding has been directed to be filed. There are other facts mentioned in the order itself, but I think, for the purpose of this application, I am not required to go into the facts. Admittedly, for the alleged infraction of the petitioner's right and thattoo by the respondents herein or their friends, associates and collaborators, the said Section 144(2) proceeding was initiated. The question arose as to when, such Section 144(2) proceeding was initiated for the protection of the rights and the same has been filed, whether a proceeding like this, which has been taken at least in aid of or for the purpose of having the order as made in such proceeding, executed, the party can proceed when the initial proceeding has been filed, J have already observed in the case of Sri Ganga Coal Storage Co. Ltd. v. State of West Bengal, reported in (1979) 2 Lab LJ 294 (Cal), that ordinarily, without taking recourse to proceeding under Section 144(2), this Court cannot be moved under Article 226, as that would frustrate the provisions of Section 144(2) of the Code of Criminal Procedure, but there may of course he exceptional circumstances, when recourse to proceeding under Article 226 may be permitted, without taking recourse to proceeding under Section 144(2).

8. Mr. Banerjee, appearing in support of the Rule and opposing the application, has contended that since in the instant case, steps were taken or the grievance made by the petitioner, for the inaction of the authorities concerned, to give the petitioner necessary help and assistance in the matter of protecting his interest for the property in issue, even if a proceeding under Section 144(2) has been filed as mentioned above, an application under Article 226 would be maintainable, as under Order 39, Rules 1 and 2, there is no appropriate provision for giving such protection as mentioned above. There is no doubt or any dispute that under Order 39, Rules 1 and 2 of the Code of Civil Procedure, there are provisions for taking steps and measures against persons, who indulge in violating or not carrying out the orders of injunction, as issued duly by the appropriate forum. In that view of the matter, I am of the view that a proceeding under Article 226 of the Constitution, for the purpose of carrying out the incidents of an order of injunction duly made by the competent court or for having such order of injunction enforced, would not be maintainable. Mr. Banerjee of course, on a reference to the determinations in the case of State of Madhya Pradesh v. Babu-lal, AIR 1977 SC 1718, contended that this Court, under Article 226, would not be powerless to interfere and make appropriate orders for the purpose of protecting the interest of a person, in respectof the properties, for which he has got injunction from the appropriate civil court. The decision, in my view, and that too in agreement with Mr. Roy, appears to be not applicable in this proceeding. There, the Supreme Court had interfered, because the judgment as made, was illegal and in clear violation of law. The position in this case is quite contrary to such determination, because here, the judgment has been made not illegally, but with authority and on due consideration of the provisions of law. Mr. Banerjee then referred to the Bench determinations of the Andhra Pradesh High Court, in the case of Ravapati Audemma v. Po-thineni Narasimham, : AIR1971AP53 . In that case, no doubt, it has been observed that there being no express provision in the Code for the purpose of implementing the temporary order of injunction, court can grant police aid under its inherent powers. There can be no doubt as to such propositions because that is quite consistent with the provisions of Order 39, Rules 1 and 2 and more particularly when, for protecting the interest of the litigants the court has got that power to take appropriate steps against he, who violates, the order. Thus, the determinations of the Andhra Pradesh High Court in my view, has also no or little application in the facts of the present case.

9. The above being the position and when I am of the view, that when a proceeding 144 (2) has either lapsed or has been filed and that apart, High Court should not ordinarily pass orders for the purpose of carrying out the orders of injunction, as duly issued by the Court of competent jurisdiction in a proceeding under Article 226, I think, the order of injunction as made should be dissolved and I order accordingly. The application is thus allowed. There will be no order as to costs.


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