- (1.) This writ application has been moved seeking a writ of mandamus and/or direction in the nature of writ of mandamus against the respondent nos. 2 to 6, who happen to be the Police Officers, starting from the rank of Assistant Commissioner of Police to an ordinary sub-inspector attached to the Burrabazar Police Station. Subsequently a private individual Mr. Satayanarayan Mishra who happens to be the Manager and Trustee of Gita Mandir Trust has been impleaded at the behest of the writ-petitioner with the leave of this Court.
(2.) The hearing of this case stand adjourned from time to time after this writ application filed in June 2007 and then listed before this Court in July 2011 nearly four years after. The hearing of the case was once adjourned as none appeared on behalf of the writ-petitioner, then again on the prayer of the State when the learned Counsel for the writ-petitioner was very much present in Court and raised no objection. Thereafter on August 4, 2011 the affidavit-in-opposition was filed on behalf of the respondent nos. 5 and 6 and copy was served upon the writ-petitioner and time was granted to him for filing reply, if any. On the same day, on the prayer made on behalf of the private respondent time of one week was granted for filing affidavit-in-opposition and the writ-petitioner to file reply within a week thereafter. As agreed by the learned Counsel of the petitioner and the Counsels representing the State-respondent and the private respondents hearing of the case was adjourned for a period of two weeks. After two weeks when the matter was listed for hearing although the learned Counsel appearing on behalf of the State-respondent and the private respondents were present in Court but none appeared on behalf of the writ-petitioner. From the affidavit of service filed in Court it is found that copy of the affidavit-in-opposition of the private respondents has been duly served upon the writ-petitioner but no reply has been filed against the same. The affidavit of service filed in Court is on record. Considering the long duration as to the pendency of this writ application and when no adjournment was sought for on behalf of the writ-petitioner the matter was taken up for hearing.
(3.) Now, having regard to the various averments made in the writ application I find the relief essentially sought for against the respondent nos. 2 to 6, the police personnels on the allegation they have unauthorizedly and illegally interfering with the lawful right of the writ-petitioner. It is categorically alleged the said respondents has most unauthorizedly and illegally closed the shop of the writ-petitioner by putting a padlock on the shop and thereby interfering with his fundamental right guaranteed under Article 19 (1) (g) of the Constitution to carry on business lawfully. It is also the case of the writ-petitioner that the private respondent no. 7 in different ways interfering with the writ-petitioner's business and although several complaints was lodged to the police, no action has been taken and on the other hand at the behest of the private respondent no. 7, the police authorities were harassing the writ-petitioner in various ways. In connection with this proceeding pursuant to an order passed by this Court the Assistant Commissioner of Police, Detective Department (Investigation), Kolkata Police conducted an enquiry at the spot and submitted his report in the form of affidavit. It appears from the said affidavit that during the enquiry it transpired that on July 21, 2007 the writ-petitioner addressed a letter to the Officer-in-Charge, Burrabazar Police Station alleging that it was the private respondent, i.e. the respondent no. 7 Satyanarayan Mishra the Manager of Gita Mandir Trust had forcibly put a padlock on the shop in question with the help of the police. It further appears that during the enquiry several adjacent shop owners as well as the writ-petitioner and the Manager and Trustees of Gita Mandir Trust were examined and according to those persons the padlock was put on the shop in question by the private respondent no. 7 Satyanarayan Mishra. One of the persons Mr. Bijay Bhutra stated to the police sometime in February, 2007 one day after his arrival at the place he found six bales of cloths which he kept inside the shop room of the petitioner were lying outside and came to learn that it is the private respondent no. 7 took out those cloths and left the same outside and put the padlock on the shop and such statement of the said Mr. Bhutra was corroborated by the other adjacent shop owners. During the enquiry the private respondent no. 7 Satyanarayn Mishra was also examined, who claimed that he was in possession of the said shop room and as the writpetitioner was trying to induct a third party in the possession he himself put the padlock and on May 12, 2007. Subsequently the writ petitioner with his associates were trying to break open the padlock, when he informed the police and the police arrived there and managed the situation. It further reveals from the said enquiry report that from long back the said shop was under lock and key and on 12.5.2007 when the police arrived at the spot having received an information about some disturbance, the said shop room in question was already under lock and key. It also reveals from the report that allegation of ousting the writ-petitioner from the said shop room and putting of padlock on the shop by the police could not be substantiated during enquiry by the writ-petitioner. In this connection it may be noted the learned Counsel appearing on behalf of the respondent no. 2 to 6, the police authorities categorically denied the allegation that it is the said respondents or with the police help the writ-petitioner was ousted from the shop in question and a padlock was put thereon. It is also pertinent to note that finding of such enquiry was never disputed nor was challenged by the writ-petitioner.;