ORDER
1. The facts inter alia leading to this writ petition are that there was an agreement for leave and licence dated 3rd August, 1991, between the father of the writ petitioner and the respondent No. 5 on the basis of which the respondent No. 5 was to stay in two rooms and one toiict in the ground floor of premises No. 23/34 Gariahat Road, Police Station Lake, Calcutta-29 up to 5th July, 1992. It is also the case of the petitioner that two notices were served dated 2nd April,
1992 and 25th June, 1992, respectively upon the respondent No. 5 asking him to deliver vacant possession on the expiry of the licence period i.e. 5th July, 1992. It has been alleged that on receipt of the said two notices, on 19th February, 1993 the respondent No. 5 delivered vacant possession of the demised premises but kept few articles in one of the room of the demised premises with a promise and/ or assurance that he would take back his goods within a period of a fortnight, in default he will pay Rs. 100/- per day as damage charges for keeping those articles in the said room.
2. It has also been alleged that after 5th July, 1992 the writ petitioner or his father did not take a single Paise on account of license fee and after 5th July, 1992 the electricity charges in respect of the said demised premises were borne by the writ petitioner.
3. It is also the contention of the writ petitioner that since the respondent No. 5 tried to take forcible entry on 3rd March,
1993 (morning) in the demised premises there was a Section 144 proceeding on 3rd March, 1993 being Case No. MP 448 of 93 wherein the learned Executive Magistrate passed an order upon the Lake Police Station to enquire into the matter and to submit a report and an order of status quo was also passed.
4. On 5th March, 1993 a writ petition was moved by the petitioner before me and order was passed directing the Officcr-in-Charge, Lake P. S. to carry out the order dated 3rd March, 1993 passed by the learned Magistrate and to see that no breach of peace takes place
in the area. The Officcr-in-charge, Lake Police Station was directed to submit a report on 12-3-1993.
5. There was enquiry by the police in the premises in question on 8th March and 9th March, 1993 and after holding the enquiry a report dated 15th March, 1993 was filed by the O.C Lake P. S. in the Court. In the report the O/C mentioned that in one room of the demised premises an old person was lying in the cot and in other room the computer and other goods of the respondent No. 5 were lying in a wrapped condition.
6. On 9th March, 1993 the respondent No. 5 came to learn that he has been dispossessed from the premises and as such lodged a complaint on 11th March, 1993.
7. On 12th March, 1993 the matter was mentioned at the first sitting of the Court. Direction was given to serve notice upon O.C. Lake P.S. to be present in Court at 2 p.m. but Lake P.S. refused to accept notice.
8. On further mentioning at 2 p.m. the Registrar Original Side was directed to communicate the order of the Court requesting O.C. Lake P.S. to be present in Court with record on 15-3-1993 and in default of appearance it was ordered that appropriate steps would be taken to arrest the O.C. for his production in Court on 15-3-93.
9. On 15th March, Officer-in-Charge,
Lake Police Station appeared in Court and filed this report after hearing the parties and order was passed inter alia by me directing the of fleer-in-Charge to hold an enquiry on this day at the locality to ascertain whether the computer business was carried on at the said premises by respondent No. 5 upto 6-3-93. Officer-in-Charge was further directed to make an inventory of goods and articles in the tenanted premises in presence of the parties at 1 p.m. on the same date and to hand over the respondent No. 5 after proper identification of the goods. The O.C. was to put his locks in the rooms were the goods were lying.
10. Pursuant to the said direction passed by me dated 15th March, 1993, the Officer-in-Charge of Lake P.S. made an inventory in
between 13.45 hrs. and 15.00 hrs. Before arrival of the Police on 15th March, 1993 the respondent No. 5 out of his own volition removed his computer and other belongings and stacked them under the stair case on the assumption that if the goods are being kept in the locked room then he will not be in a position to use the same for an indefinite period and he will sustain loss.
11. In this connection I may take note of the material portion of the two reports filed by the concerned officer of the police station.
“The Hon’ble High Court had kindly directed o/ C Lake P.S. on 5-3-1993 to strictly comply with the order of Ld. Executive Magistrate dt. 3-3-1993 as wel! as to submit compliance report on 12-3-1993.
It may also be mentioned here that in the Court petition filed by Mr. Soumendra Nath Sengupta before Ld. Executive Magistrate Alipore Court dt. 3-3-1993 he had mentioned a General Diary No. 225 dt. 3-3-1993 but in the above mentioned General Diary Shri Sengupta did not mention any thing relating to any dispute excepting missing of a personal file. The copy of the relevant G.D. Entry is enclosed herewith.
On 8-3-1993 the Spot was visited and enquiry was initiated. On inspection it was found that one very elderly and sickly person was lying on a cot in a room out of the two rooms and some computer machines etc. were wrapped up with cover of the adjoining room of premises No. 23/34, Gariahat Road, Ground Floor. It was also learnt that elderly person was Mr. Narendranath Sengupta the father of the petitioner Sri Soumendra Nath Sengupta and he was being attended to by nurse, and Mr. N. N. Sengupta was not in a position to make any statement as he was reportedly very sickly and a heart patient. Neither the petitioner nor any of his representative was found to examine in the light of the contents of the Court petition. The O.P. i.e. Sri Subhas Chandra Bose was also not found to examine.
On subsequent efforts, O.P. Sri Subhas Chandra Bose had called at Lake P.S. and he stated that he was running a business under
the name and style of M/s. Frontier System since Aug. 1991 under the Landlordship of Sri N. N. Sengupta two rooms of the ground floor of 23/34 Gariahat Road, Calcutta. He was regularly paying rent to Shri S. N. Sengupta son of Landlord. He further added that he was smoothly running his computer Center at the above address but suddenly he found that one of the above two rooms was taken over and Mr. N. N. Sengupta was inducted into the room without his knowledge and nolice by breaking open the padlock of the door. He also mentioned that on 6-3-1993 evening he had duly looked up the room after his schedule business hours.
On 9-3-1993 he came to know from his staff member that he was illegally dispossessed and his staff members were not allowed to enter into his scheduled business centre. He did not make any complaint till 11-9-1993 when he submitted a written petition also alleging that he was illegally ousted. He further added that he had taken occupation of the above two rooms by virtue of a lease agreement for 11 months with effect from Aug. 199! from Sri S. N. Sengupta. After the expiry of the lease period he was reportedly verbally assured for extension of the lease term and as such he was continuing his business of the above address. He failed to produce any such agreement till today in spite of request.
In spite of several attempts neither the petitioner nor any of his representative had called on this office to make statement relating to the matter although in the Court petition Mr. Soumendranath Sengupta has stated that Mr. S. Bose had surrendered (he tenancy in respect of the rooms with the verbal assurance to remove all of his belongings later on but so far Mr. Bose did not turn up with any of the tenancy surrender petition on such document.
The order of the Ld. Executive Magistrate is being strictly complied with till today and status quo is being maintained since inception of receipt of the Court petition.”
12. On 15th March, 1993, an order was passed by me to the following effect:-
THE COURT: It appears that on 3rd March, 1993, an application was made before the Court of the Learned Magistrate, 1st Court, Alipore, whereupon the Learned Magistrate passed, inter alia, an order to
the following effect:
“In the meantime, O/C, Lake P.S. is directed to see thai no wrongful act is done by O. Ps. in the scheduled premises and no breach of peace takes place and status quo as on to-day be mainlained by both parties.
Issue notice upon O.Ps. for appearance and filing S.C. requisite to-day.
To 5-4-1993″
It appears from the police report filed in Court (o-day by the concerned officer carrying out the duty of the Officer-in-Charge, Lake P.S. that on 8th March, 1993 he found to the following effect :–
“On inspection, it was found that one very elderly and sickly person was lying on a cot in a room out of the two rooms and some computer machiness etc. were wrapped up with cover at the adjoining room of premises No. 23/34, Gariahat Road, Ground Floor. It was also learned that elderly person was Mr. Narcndranath Sengupta, the farther of the petitioner Sri Soumendra Nath Sengupta and he was being attended to by nurse, and Mr. N. N. Sengupta was not in a position to make any statement as he was reportedly very sickly and a heart patient. Neither the petitioner nor any of his representatives was found to examine in the light of the contents of the court petition. The O.P., i.e., Sri Subhas Chandra Bose, was also not found to examine.
On subsequent efforts, O.P. Sri Subhas Chandra Bose had called at Lake P.S. and he stated that he was running a business under the name and style as M/s. Frontier Systems since Aug.-1991 under the landlorship of Sri N. N. Sengupta in two rooms on the ground floor of 23/ 34, Gariahat Road, Calcutta. He was regularly paying rent to Sri S. N. Sen-gupta son of the landlord. He further added that he was smoothly running his computer Centre of the above address but suddenly he
found that one of the above two rooms was taken over and Mr. N. N. Sengupta was inducted into the room without his knowledge and notice by breaking open the padlock of the door. He also mentioned that on 6-3-93 evening he had duly locked up the room after his schedule business hours.”
The concerned officer carrying out the duty of the Officer-in-Charge, Lake Police Station, is directed to call the petitioner, as he has mentioned in his report that in spite of the fact that the petitioner was called upon to appear before him, nobody has appeared on behalf of the petitioner, and to make an enquiry as to the allegation of the respondent No. 5 and/or his representative that the computer business was carried on up to 6th March, 1993 and submit a report to this Court on 17th March, 1993. .
Officer carrying out the duties of the Officer-in-Charge, Lake Police Station is directed to make an inventory of the goods lying at one room in front portion at the ground floor of the said premises No. 23/ 34, Gariahat Road, Calcutta, P. S. Lake in the presence of the parties at 1 -00 O’ Clock today and on proper identification of the goods will hand over the same to the respondent No. 5. The said Officer of Lake P.S. will put his lock in that room where the goods of the respondent No. 5 are lying. Copies of the report of the Police Officer filed in Court today be given to both the parties.
Affidavit-in-Opposition is to be filed by 17th March, 1993, affidavit-in-reply, if any to be filed by 30th March, 1993 and this matter is adjourned till 31-3-1993.
Let this matter appear “For Orders” on 17-3-1993 at 2 p.m.
All parties including the Officer-in-Charge,
Lake Police Station, shall act on a zerox signed copy of this dictated order upon usual undertaking.”
13. It appears from the said report of the Officer-in-Charge that the Police found in the presence of the parties and/or their representatives that all goods excepting the “Comfort” make A.C. machine which was installed
in one of the tenanted rooms have been wrongfully damaged and removed by writ petitioner and his associates and dumped under the staircase (outside the tenanted accommodation) Mr. Hussain, O.C. was surprised in view of the removal of the goods. Respondent No. 5 also pointed out that the order of this Court was again violated and that goods were damaged.
14. That no paper or document was produced by Sengupta indicating alleged surrender of tenancy by the respondent No. 5. Statements of several witnesses on behalf of the parties were recorded. On independant enquiry by police, the statements of independant witnesses were recorded corrobo-rating the statement of respondent No. 5.
15. It was also recorded that the respondent No. 5 exhibited from his computer which was then lying in the said premises, that the office work was carried on at the premises upto the evening of 6-3-1993. (This was possible as the computer automatically records date and time of its used and this information is preserved by a battery, backup even when the computer is disconnected from power.
16. Daily Attendance and Enquiry register recovered by police from the writ petitioner, proved that students attended the computer class also in the evening of 6-3-1993. Both the register including the inventory list were countersigned by Sm. Suneets Sengupta, daughter of the writ petitioner and his Advocate Sri Ainul Haque. The respondent No. 5 and his Advocate Sri A. K. Sen and O. C. Sri Hussain also signed.
17. It was recorded by police that the computer goods which were found stacked in one of the tenanted rooms by the police on 8-3-1993 and 9-3-1993 were found removed and stacked under the staircase inside the premises.
18. One A/C machine was found fixed inside the room. In view of the claim and counter claim the same was not removed. Two attendants of one N. N. Sengupta and his personal belongings were found in one of the said room on 15-3-1993. On the advice of
Sri Haque, Advocate, Sin. Suneeta Sengupta, the daughter removed all the belognings and the Articles. The room was locked by the O.C. in presence of the parties/representatives and the keys were kept with him.
19. On 24th March, 1993, the respondent No. 5 affirmed an affidavit intended to be used as affidavit in opposition to the writ petition. He also filed an application for restoration of possession of the premises and also on application for contempt.
20. It has been contended that the complaint lodged with the Lake Police Station by the writ petitioner being General Diary No. 225 dated 3-3-93 did not mention any thing relating to any dispute excepting missing of a personal file, and, as such, both the Magistrates order and also the order passed by this Court cannot have anything to do with the dispute relating to the possession of the premises.
21. It has been submitted on behalf of the respondent No. 5 that on the basis of material suppression of fact that petitioner has obtained an order and the writ petition in the instant case is not maintainable and is liable to be dismissed and the status quo ante should be restored. Inasmuch as the petitioner on the basis of the interim order has obtained an advantage which he is not entitled, the respondent No. 5 should be restored back to his original condition.
22. Mr. Asoke Day learned advocate in reply to the submission also submitted that this Court should not pass any order on the basis of affidavit on the disputed question. Proper course would be for the parties to take re-course to civil suit. According to Mr. Day Sections 5 & 6 of the Specific Relief Act provide for adequate remedy under such circumstances and the petitioner instead of taking recourse to the writ petition should file a civil suit.
23. Both the parties relied upon the several decisions in support of their respective contention.
24. I have considered the submissions of the parties, the facts on record and decisions
cited from the bar.
25. In the petition filed before the Learned Magistrate by the writ petitioner it has been alleged inter alia as follows:
“2. That Premises No. 23/34, Gariahat Road, Calcutta: 700029 is belongs to the father of your petitioner Mr. Narendra Nath Sen Gupta, who has authorised your petitioner to file the instant case and a Xerox Copy of the said letter is enclosed herewith for Your Honour’s kind perusal.
3. That being duly authorised by his father Mr. Narendra Nath Sen Gupta, your petitioner entered into an agreement dated 3rd day of August, 1991 which was duly executed by and between your petitioner and the Opposite Party.
4. That as per the said agreement dated 3-8-1991 the Opposite Party become the Licensor for a limited period of 11 months commencing on and from 3rd August, 1991 and the said agreement was expired on or before 5th July, 1992 in respect of 2 rooms (Front portion) with toilet measuring about 360 Square Feet.
5. That accordingly on the 2nd day of April, 1992 your petitioner wrote a letter to the opposite party asking him to vacate and handover the vacant possession of the aforesaid 2 rooms (front portion) with toilet at the aforesaid premises as per the agreement dated 3rd August, 1991 which was exprired on the 5th July, 1992, and verbally opposite party was agreed to vacate and hand over the peaceful possession of the said rooms and toilet to your petitioner within the stipulated period of the said agreement, as the same was required by your petitioner for his own use and occupation.
6. That on 25-6-1992 your petitioner through his Learned Advocate – Anand Kishore Gupta sent a letter by registered post A/d asking the Opposite Party to vacate and handover the peaceful vacant possession of the aforesaid rooms to your petitioner in terms of the said agreement.
7. That accordingly on 19th day of Febru-
ary, 1993 the opposite party surrendered his right, title and interest whatsoever was vested in the said 2 rooms at the front portion at the ground floor with toilet at the aforesaid premises to your petitioner and handover the peaceful possession of the said rooms with toilet to your petitioner.
8. That the opposite party has requested to your petitioner that the opposite party will shift within fortnight the some belongings which belongs to the opposite party failing which opposite party will pay higher charges at the rate of Rs. 100/- per day after expiry of the aforesaid fortnight.
9. That accordingly after expiry of few days from the date of the surrender of the aforesaid two rooms with toilet, the opposite party frequently started to visit the premises of your petitioner and made several requests to let out the said rooms and/or to give a licence for the same to him, but the same was duly refused by your petitioner intimating the opposite party that the said two rooms are reasonably required by your petitioner for his own use and occupation and your petitioner is at presently residing therein.
10. That on 2-3-93 the opposite party along with 5/6 unknown other associates came to the premises of your petitioner and again gave a proposal to allow him to slay in the said 2 rooms with toilet, though he has surrendered the said rooms to your petitioner and accordingly the same was again denied by your petitioner and after listening this the opposite party and his associates became furious and started to shouting and held out a threat that the opposite parties will take forcible possession of the aforesaid two rooms at the aforesaid premises by any means, if necessary, by applying criminal forces and engaging hired local hooligans and threatened with dire consequences.
11. That the aforesaid high handed activities of the opposite party and his men and agents had reached to such a peak that there is every possibility of breach of peace, riot, afray bloodshed at the instance of the opposite party and his men and agents until or unless the opposite party are being restrained by an appropriate order or writ.
12. That the aforesaid incident was reported to the Lake Police Station and wherefrom your petitioner has referred to this learned Court to seek relief.
13. That until or unless reliefs are being granted, as prayed for your petitioner will suffer irrepairable loss and injury and there is no other forum to get adequate and proper and speedy relief save and except this learned Court.
14. That the instant application invoking the inherent power of this learned Court is being filed herewith and an urgency has been spelled out by your petitioner and as such intervention of this learned Court into the matter is become necessary to avoid further cognizable offences by the opposite party and his men and agents.
15. That again today at about 8.30 hours the opposite party along with 5/6 unknown persons came to the premises and tried to take forcible possession but due to strong resists the opposite parties could not achieve their wrongful goal and your petitioner reported the matter vide Lake Police G.D.E. No. 225 dated 3-3-93.
16. That your petitioner has demanded justice from the Police Authorities which they denied/refused and/or neglected and it is incumbent upon the Police Authority to discharge their duties in their normal functioning being the authority in person according to the provisions of Calcutta Police Act, Criminal Procedure Code, Indian Penal Code and/ or other statutes framed thereunder for the time being in force to prevent breach of peace and cognizable offences and to detect the offenders and to bring before the Court of Law or justice.”
26. It appears that the allegation of the petitioner is that the O.P. No. 5 has surrendered his right title and interest whatsoever vested in the said premises and handed over peaceful possession and at the same time requested the petitioner that he will shift wilhin fortnight failing which he will pay at the rate of Rs. 100/ – per day after the expiry of the fortnight. The aforesaid allegation made in paragraphs 7 and 8 of the petition filed
before the learned Magistrate appear to be inconsistent. Even assuming the said allegation to be correct belongings of the O.P. No. 5 remained and would remain in the said flat in terms of the alleged agreement for a period of fortnight from 19th February which would expire on 5th March 1993. A complaint was lodged in the Police Station on 3rd March 1993 and the G.D. Entry was made by the Police Station being No. 225 dated 3-3-93 which relates to the missing of the personal file of the writ petitioner and has nothing to do relating to the dispute with regard to the possession of the flat in question.
27. Be that as it may, the petitioner moved the learned Magistrate on 3rd March, 1993 on the allegation already noted and obtained an order of status quo. Learned Magistrate also directed O.C. to see no breach of peace takes place. On 5th March, 1993 the writ petition was moved before rne and I directed O.C. Lake P.S. to strictly comply with the order of the learned Magistrate and submit a compliance report. Admittedly, therefore, when the order was obtained on 3rd March, 1993 the belongings of the respondent No. 5 remained in the said flat as alleged in the petition before the learned Magistrate. The status quo order, therefore, means the belongings which were there should remain as it is. In other words, there would be no shifting by the respondent No. 5 on the basis of the alleged agreement as alleged in the petition filed before the learned Magistrate. In that view of the matter, order of status quo obtained from the learned Magistrate really goes in favour of the respondent No. 5. It has not been alleged in the petition before the learned Magistrate that the petitioner’s father was occupying one room in the said flat. Police report only shows that on 8th March, 1993 when the police visited the flat to make enquiry revealed that an old gentleman stated to the father of the petitioner was lying seriously ill.
28. The case of the petitioner as appears from the petition filed before the learned Magistrate that the petitioner kept his belongings at the said premises which would remain up to 5th March, 1993, even though the respondent No. 5 surrendered and delivered
possession to the petitioner as alleged in the said petition. If the belongings were kept there at the said premises there was no question of handing over vacant possession. The other aspect of the matter as alleged in the petition filed before the learned Magistrate is that the agreement between the petitioner and the respondent No. 5 dated 3rd August, 1991 expired on 5th July, 1992 in respect of the said premises. Two notices were served dated 2nd April, 1992 and 25th May, 1992, asking the petitioner to deliver vacant possession with the expiry of 5th July, 1992. From 6th July, 1992, at the most the respondent No. 5 may become a trespasser but still he continues to occupy the said premises. It is well settled that even a trespasser cannot be evicted except by due process of law. By the alleged arrangement dated 19th February, 1993 as already noted the petitioner does not get vacant possession since belongings were still there at the said premises.
29. It has also been alleged in the petition before the learned Magistrate that in default of taking out his belonging from the said premises the petitioner would be paying Rs. 100/- per day. In that event at the most the petitioner may claim Rs. 100/- per day if the belongings are still kept there. On the basis of the said petition the respondent No. 5 is entitled to keep the goods and his belongings at the said premises upon payment of Rs. 100/- per day. From the facts on record already noted it is clear that the goods of the respondent No. 5 have been removed from the said premises in spite of the order of status quo passed by the learned Magistrate and also by me.
30. Under such circumstances the petitioner cannot be allowed to perpetrate the wrong he has committed. It also appears that from the enquiry report of the Officer-in-charge of Police Station and also from the documents and papers found lying at the said premises that the computer classes were held at the said premises on 6th March, 1993. The attendance register has been produced in Court. It is clear therefore that up to 6th March, 1993 the respondent No. 5 had been in possession of the said premises. It also
appears from the said report filed by the Officer-in-charge of the Police Station that the police found all the goods of the petitioner removed from the said room and dumped under the stair-case. However one “comfort” make A.C machine is still there. The respondent No. 5 has produced evidence to show that the said machine belongs to his concern. No document has been produced on behalf of the petitioner that the petitioner is the owner of the said machine. The said fact also shows that the respondent No. 5 had not really parted with possession of the premises.
31. Therefore in my view prima facie case has been made out that the status quo order directed to be maintained has been violated by the petitioner. Under such circumstances the petitioner is entitled to be restored back to the original position so that the orders of the Court are duly carried out. In this connection, I take note of the judgment and decision which are relied upon by the parties.
32. Learned Advocate for the petitioner relied upon the judgment and decision in the case of State of Rajasthan v. Bhawani Singh .
33. In my view the proposition enunciated by the Supreme Court in the aforesaid decision does not apply to the facts of the instant case as already recorded.
34. Learned Advocate for the petitioner also referred to the judgment and decision in the case of Ghan Shyam Das Gupta v; Anant KumarSinha. It was held that the remedy provided under Art. 226 is not intended to supersede the modes of obtaining relief before a Civil Court or to deny defences legitimately open in such actions. So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of O.21 of the Code take care of different situations, providing effective remedies not only to judgment debtors and decree-holders but also to claimant Objectors as the case may be. In an exceptional case, where provisions are
rendered incapable of giving relief to an aggrieved parly in adequate measure and appropriate time, the answer is a regular suit in the Civil Court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice is expected to do better. It is difficult to find a case where interference in writ jurisdiction for granting relief to a judgment debtor or a claimant objector can be justified. The writ petition filed by members of the tenant’s family claiming that the eviction decree passed against the tenant alone is not binding upon them, as they (petitioners) along with the tenant constitute a joint family and they are as such tenants in their own right, ought to have been rejected on ground of alternative remedy.
35. In my view there is nothing new in the proposition by the Supreme Court in the aforesaid decision. The said decision, however, instead of supporting the contention of the petitioner goes against him because the writ petition has been instituted by the petitioner. In the event the writ petition is held not maintainable, the writ petition should be dismissed and the advantage obtained by the petitioner on the basis of interim order obtained should be vacated and the party should be restored back to the original position as on the date of the interim order. As already noted that the unfair advantage obtained on the basis of the interim order should be neutralised.
36. Learned Advocate for the petitioner also referred to the judgment and decision in the case of Harbans Lal v. Jagmohan Saran and submitted that there is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior Court or subordinate Court.
37. In the case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram , in this decision no interference is that (sic) for writ jurisdiction
unless finding is perverse or is based on no evidence to justify it or has resulted in manifest injustice.
38. In the case of D. Parraju v. General Manager, B. N. Railway , it was held by the learned single Judge of this Court that in spite of the wide words of Art. 226 one must remember that the object of Art. 32 or Art. 226 was not to supplant the ordinary right of action or the remedy provided for by the ordinary law of the land. If a suit or can get an adequate and convenient and beneficial remedy by the normal process of a suit or by the remedy provided for by a statute, the High Court will not, ordinarily exercise its powers under Art. 226.
39. A person aggrieved by an order of removal from service has a more convenient, effective, complete and adequate remedy by way of a suit for a declaration that the order dismissing him was void and that he still remained a member of the service, where the parties are in dispute on several questions, namely, the authority by which the petitioner was appointed, the nature of the inquiry, if any, made in the case, the denial of a right of appeal, the alleged imperfect nature of the enquiry and the alleged arbitrary conduct of certain officers of the administration it is difficult to arrive at a satisfactory conclusion on these matters on mere affidavits. In order to get at the truth, it is necessary that the questions referred to above should be canvassed in a suit where the parties would have ample opportunity of examining their witnesses and the Court would be better able to judge which version is correct.
40. In my view, the decisions cannot be of any assistance to the petitioner. As already noted the writ petition is held not maintainable, the interim order should be vacated and the party should be restored back to the original position.
41. In the case of (1) Civil Appeals Nos. 362 to 377 of 1962, State of Madhya Pradesh v. Bhailal Bhai; (2) Civil Appeals Nos. 858 to 867 of 1962 State of Madhya Pradesh v. Amarchand, and (3) Civil Appeals Nos. 25 to
29 of 1963. The State of Madhya Pradesh v. Ambalal , it was held that the High Court has power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief. Petitioner in the said case paid tax under the statute which was declared and the consequential relief, the payment was granted by the Madhya Pradesh. The dispute went up to the Supreme Court. The Supreme Court did not interfere the said decision.
42. In paragraphs 14,15 and 16 of the said judgment at pages 1010 and 1011 of the said report the Supreme Court observed as follows:-
“(14) A portion of the tax thus assessed has been already paid by the petitioners. It cannot now be disputed that this payment was made under a mistake within S. 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. The question is whether the relief of repayment has to be sought by the taxpayer by an action in a civil court or whether such an order can be made by the High Court in exercise of its jurisdiction under Art. 226 of the Constitution. The jurisdiction conferred by Art. 226 is in very wide terms. This Article empowers the High Court to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. According to the petitioners a writ in the nature of mandamus can be appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. That in a number of cases the High Courts have used the writ of mandamus to enforce such repayment is not disputed. In a recent case in this Court made in a petition under Art. 32 an order for refund of lax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The question whether the Court has this power to order refund was not however raised there. In Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf,
, the appellants disputed the correctness of the High Court’s order made in an application under Art. 226 of the Constitution directing refund of taxes that had been paid under the U.P. Sales Tax Act on the respondent’s forward transactions in silver bullion. After the levy of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked for refund of the tax paid and when that was refused he applied to the High Court under Art. 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for refund was affirmed by this Court in appeal. In this case also the power of the High Court to order such refund was not challenged either before the High Court or before this Court.
(15) We see no reason to think that the High Courts have notgot this power. If a right has been infringed – whether a fundamental right or a statutory right – and the aggrieved party comes to the Court for enforcement of the right it will not be giving complete relief if the Court merely declares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application under Art. 226 would lie and the Courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the Court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the Court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.
(16) For the reasons given above, we are
clearly of opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment’ of money realised by the Government without the authority of law.
43. It, therefore, appears to me that the High Court under Art. 226 of the Constitution in exercise of writ jurisdiction can undo the wrong made by any party and to restore back the original position.
44. It is well settled that the Court should endeavour to neutralise any undeserved and unfair advantage gained by a party invoking its jurisdiction.
45. In the case of Grindlays Bank Ltd. v. ITO, , it was held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it.
46. Accordingly, the unfair advantage obtained by the petitioner on the basis of the interim order obtained should be neutralised by the Court.
47. Under such circumstances the petitioner cannot be allowed to perpetrate the wrong he has committed.
48. The Police authorities are accordingly directed to take appropriate action for restoration of the original possession back to the respondent No. 5 forthwith. It is, however, made clear that both the parties will be at liberty to institute appropriate civil proceeding if the parties are so advised and the finding and order passed in the instant writ petition will not have any effect on such civil proceeding.
49. The Officer-in-Charge, Lake Police Station is directed to take steps for restoration of possession of the respondent No. 5 at the said flat in question. Mr. Saha appearing on behalf of the petitioner prays for stay of
operation of this order.
50. In view of the observations made above, Officer-in-Charge of Lake Police Station is directed to carry out this order within 48 hours from this order. In that view of the matter, the prayer for stay is rejected.
51. The writ petition is, accordingly, disposed of with the observations made above. There will be no order as to costs.
52. All parties concerned are to act on the signed copy of the operative portion of the judgment on the usual undertaking.