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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.734 OF 2003
Pushpalata Gopal Worlikar,
Age 45 years, Occu - Household,
Residing at Gopal House, Shreeram
Gully, Worli, Koliwada,
Mumbai - 400 025 .....Petitioner
versus
1. Mr.Ranjitsing Sharma,
Commissioner of Police,
having his office at Office of
Commissioner of Police,
Opp. Mahatma Phule Market,
Mumbai - 400 001.
2. Mr.Padwal,
Senior Inspector of Police,
Dadar Police Station, Mumbai.
3. Mr.Waghmare,
Police Sub Inspector,
Dadar Police Station, Mumbai
Nos.2 and 3 having their Offices at
Bhavani Shankar Road, Mumbai - 400 028.
4. Shri Ranglal Jain,
Age about 50 years, Occu Business,
5. Smt.(name not known ), wife of
Ranglal Jain, Age not known, Occu Household,
6. Devendra, son of Ranglal Jain,
Age about 30 years, Occu Business,
Nos.4 to 6 occupying portion of
Shop No.1 In house No.460, Ramchandra
Poshu Chawl, Bhagat Gully, Worli, Koliwada,
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Mumbai - 400 025.
7. State of Maharashtra,
Home Department, Mantralaya,
Mumbai - 400 032. ..... Respondents
Mr.V.S.Paradkar, for the petitioner.
Mr.G.W.Mattos, AGP, for respondent Nos.1 to 3 and 7.
Mr.S.S.Redekar, for respondent Nos.4 and 6.
CORAM: P.B.MAJMUDAR &
R.M.SAVANT, JJ.
ig th
DATE: 10 OCTOBER, 2011
ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) : -
1. By way of this petition, the petitioner has prayed for
appropriate writ directions orders under Article 226 of the Constitution of
India directing respondent Nos.1 to 3 to remove the respondent Nos.4 to 6
from the possession of disputed shop being Shop No.1 in house No.460,
Ramchandra Poshu Chawl, Bhagat Gully, Worli, Koliwada, Mumbai – 400
025, which premises according to the petitioner belongs to him. It is the
case of the petitioner that she had initially filed a suit for getting
possession of the said premises, in which a decree for possession was
passed in favour of the petitioner. It is further the case of the petitioner
that the petitioner got the decree executed and entered into possession,
but subsequently, after some time, the respondent No.4 again entered the
premises by trespassing the same with the alleged help of police constables
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and in that view of the matter, this petition has been filed in which police
authorities have been joined as respondents and prayer for possession is
made so far as respondent No.4 is concerned.
2. The above petition has been resisted on behalf of the police
department. An affidavit-in-reply has been filed by Mr.Ramesh Mahadev
Waghmare at page 49. In para Nos.3 and 4 it is averred as under : –
“3. I say that I was attached to the Dadar Police Station
and was working thereat as Police Sub-Inspector for theperiod September 2002 till 22nd December, 2004. I say that
as per records of the Worli Koliwada Police Chowki, Beat
No.1, the possession in respect of the writ premises wastaken in execution of a decree passed in RE Suit No.
1377/4520/1993 on 29th October, 2002 as more
particularly elucidated in the Station Diary Entry Nos.6 and
7. I say that as per the said records, possession of the writ
premises was taken from the respondent No.4 and oneVinod Tailors, under police protection. I crave leave to refer
to and reply upon the extract of the Station Diary as andwhen produced.
4. I say that on 10th January, 2003, at about 8.30 p.m.,
the respondent No.4 approached the Worli Koliwada Beat
Chowki, with a complaint against the petitioner. I say thatat that time, Head Constable Ashok Bajirao Bhonsle, Police
Constable Jagdish Nivruti Kamble were on duty. The
respondent No.4 alleged that the petitioner had allegedly
assaulted him and had caused damage to his shop premises.
Accordingly, the said police constables accompanied the
respondent No.4 to the site whereat the petitioner was
found. I say that the said Constables thereafter, brought the
petitioner and the respondent No.4 to the Dadar Police
Station at about 9.30 p.m. I say that I was the duty Officer
at the said time. I say that the petitioner and the
respondent No.4 both claimed to be in possession of the
premises. It is pertinent to note that at that point of time,
the petitioner had not informed me that the possessionof
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the said premises was taken in execution on 29-10-2002
under police protection. I say that neither me nor the said
Constables were aware of the said fact. I say that I called
upon both the parties to produce the documents to
substantiate their rival claims. The petitioner in no
uncertain terms told me that she would produce the
documents before me only after consulting her lawyer.
However, she omitted and failed to do so.
3. The learned counsel for the respondents states that the
decree was in connection with the Shop No.1 and he is in possession of
Shop No.2 qua which there is no decree. The learned counsel for the
petitioner submitted that the entire shop is one and only wooden partition
was made. In our view, such a highly disputed question of fact and that
too involving a private party cannot be examined in our writ jurisdiction
under Article 226 of the Constitution of India. The learned counsel for
the respondents submitted that in fact the original decree was executed
with the help of the police and it is not correct that the respondent No.4
entered into the possession with the help of police, for which he has relied
upon the affidavit-in-reply. Considering the above facts and the fact that
even respondent No.4 has alleged to have trespassed upon the property
again after the execution of the decree, the appropriate remedy would be
to file a substantive civil suit to get back possession in accordance with
law. The learned counsel for the petitioner has placed reliance on a
decision of the Supreme Court in the case of Shalini Shyam Shetty and
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Anr. V/s. Rajendra Shankar Patil1. In fact, the said decision does not
come to the aid of the petitioner in any manner. The relevant
observations of the Supreme Court are reproduced hereinunder :
15. The facts of the case have been discussed in detail in
order to show that in a pure dispute of landlord and tenantbetween private parties, a writ petition was entertained by
the High Court. It did not pass any order on the writ
petition, inter alia, on the ground that there are concurrent
findings of fact. If the findings have not been concurrent,the High Court might have interfered. In any event, High
Court did not hold that a writ petition is not maintainablein a dispute between landlord and tenant in which both are
private parties and the dispute is of civil nature.
16……………….
72. Therefore, a private person becomes amenable to writ
jurisdiction only if he is connected with a statutory
authority or only if he/she discharges any official duty.
73. In the instant case, none of the above features are
present, even then a writ petition was filed in a pure
dispute between landlord and tenant and where the onlyrespondent is the plaintiff landlord. Therefore, High Court
erred by entertaining the writ petition. However, the
petition was dismissed on merits by a rather cryptic order.
4. Considering the aforesaid ruling of the Supreme Court, a
dispute between the petitioner and the respondent No.4 cannot be
adjudicated in a petition filed under Article 226 of the Constitution of
India. Even though, the respondent No.4 has alleged to have trespassed
upon the property in question, the remedy would be to file civil suit for
obtaining possession. The petitioner could have filed a complaint for
1 2010 (6) Mh.L.J. 661
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illegal trespass before the police, instead she has rushed to this Court. It
is not a case where the authorities are in any way instrumental in getting
the respondent No.4 into the premises. In view of the same, it is
obviously a property dispute between the petitioner and the respondent
No.4 and the respondent No.4 even if illegally having taken possession,
the writ jurisdiction of this Court cannot be invoked. If such petitions are
entertained, then even a private dispute of landlord and tenant will be
brought before this Court. The learned counsel for the petitioner, having
realized this difficulty, submits that the petitioner would like to file
appropriate proceedings before the Civil Court. If any such proceedings
are filed, it is for the appropriate Court to consider whether such
proceedings are required to be expedited in view of the fact that the above
petition was being prosecuted by the petitioner in this Court since 2003.
5. In the light of what is stated above, the writ petition is
dismissed. Rule discharged.
( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )
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