PETITIONER: PRASANNA KUMAR ROY KARMAKAR Vs. RESPONDENT: STATE OF WEST BENGAL AND OTHERS DATE OF JUDGMENT: 26/03/1996 BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) SINGH N.P. (J) CITATION: 1996 AIR 1517 1996 SCC (3) 403 JT 1996 (3) 647 1996 SCALE (3)239 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
SEN, J.
Special leave granted.
This is an extra-ordinary case. A private dispute
between a landlord and a tenant was taken up in writ
jurisdiction and mandatory orders were passed directing the
State and the police authorities to allow the writ
petitioner (the landlord) to have ingress and egress to and
from the disputed premises. On the basis of this order, the
landlord with the help of police authorities evicted the
tenant from his flat, In other words, the landlord was able
to get back possession of tenanted premises without having
to go through the usual landlord and tenant proceedings
before appropriate forum in accordance with law.
It appears that after instituting proceeding under
Section 144 of the Criminal Procedure Code in the Court of
the Executive Magistrate, the landlord moved the High Court
under its constitutional writ jurisdiction. Shyamal Kumar
Sen, J. on 13th August, 1993 passed an order directing the
Officer in Charge, Muchipara Police Station, to make an
enquiry into the complaint dated 26th July, 1993 and submit
a report on 19th August, 1993. This was an exparte order
without any notice to the tenant. On 30th Augusts 1993 the
writ petition was finally disposed of on the basis of the
police report. It was alleged that Robin Roy and his brother
Gobinda Roy had taken forcible possession of the first floor
and other portion of the premises which had not been let out
to Rabin Roy, The police authorities were directed to ensure
that the free egress and ingress of the landlord to and from
the disputed flat was not interfered with by the tenant. If
necessary, the police authorities were directed to remove
the obstruction to such free egress and ingress. All parties
including the Officer-in Charge, Muchipara Police Station,
were directed to act on a signed copy of the minutes of the
order. It is not known how the proceedings under Section 144
of the Criminal Procedure Code ended. But, as a result of
the order passed by the writ court, the police evicted the
tenant from the disputed premises and the landlord was able
to resume possession immediately with police help.
The scope of writ jurisdiction of the Court was lost
sight of by the learned Judge and an extraordinary situation
was brought about by an improper and unjust order passed
without any affidavit in less than three weeks’ time.
Between 13th August, 1993 and 30th August, 1993 a writ
petition was moved, taken up for hearing and finally
disposed of. A tenant was dislodged from the disputed
premises with police help. No proper hearing was given to
the respondents. A copy of the police report was not given
to the respondents. No direction was given for filing of
affidavits even to the State, There is no explanation why
the proceedings were not allowed to be continued in the
Court of the Executive Magistrate in accordance with law. It
was most unfortunate that the Court intervened in a
proceeding under Section 144 of the Criminal Procedure Code
which was actually being heard and a drastic order of this
nature was passed by the court in such a manner without
issuing a Rule Nisi and without any proper hearing. A
procedure unknown to law was adopted for disposing of a
landlord-tenant dispute.
What happened thereafter was also very unfortunate for
the appellant. The appeal court on October 14, 1993 passed
the following order:
“The Hon’ble A.M. Bhattacharjee, the Chief Justice
and
The Hon’ble Justice N.K. Batabyal,
October 14, 1993. Prasanna Kr. Roy Karmakar
vs.
State of West Bengal & Ors.
THE COURT heard learned counsel for
the parties. It is purely a private
dispute between the private
parties. We are fully satisfied
particularly in view of the
decision of the Supreme Court
reported in Mohan Pandey & Anr. v.
Usha Rani Rajgaria & Ors., AIR 1993
SC 1225, that the writ petition
which has given rise to this appeal
ought not to have been entertained.
That being so, we allow this appeal
and set aside the order under
appeal.
All parties to act on a signed
copy of the minutes of this order
on the usual undertaking”.
This order, however, did not enable the appellant to
get back possession. The appeal court lost sight of the fact
that the writ Court had intervened in a purely private
dispute and as a result of its order the appellant had been
dispossessed by the police.
A further application, therefore, was made to the
appeal court for necessary relief. On 14th January, 1994 the
appeal court passed the following order.
“The appeal has already been
disposed of and we have accordingly
become functions officio. This
application can therefore no longer
be entertained and is rejected.
The two orders passed by the appeal court on October
14, 1993 and January 14, 1994 did not give any relief to the
appellant, even though his appeal was allowed and the order
under appeal was set aside. The appeal court lost sight of
the fact that the appellant, who had been dispossessed by
the order passed by the writ court, had to be put back in
possession after setting aside the writ Court’s order.
A Special Leave Petition was made against the afore-
said two orders passed by the appeal court on 14th October,
1993 and 14th January, 1994. It may be mentioned here that
the Special Leave Petition was dismissed for default, but
later on restored on an application made by the appellant.
Mr. Ganguli appearing on behalf of the respondents has not
tried to justify the extraordinary and unfair ex-parte
orders passed. In fact, he fairly admitted that the writ
court had exceeded its jurisdiction in intervening in a
private dispute. He also did not seriously object to the
proposition that since by an erroneous order the appellant
had been evicted from the possession of the disputed
premises, it was the duty of the appeal court, after
reversing the order of the Trial Court, to restore the
appellant back into possession. If the appellant was ejected
from the disputed premises with . police help pursuant to
the order which was set aside, the possession should have
been restored to him with police help, if necessary.
Otherwise, even after succeeding in the appeal the appellant
will remain without remedy and out of possession as a result
of the order passed by the Trial Court. Actus curiae neminem
gravabit An act of the Court shall prejudice no man. It was
the duty of the Appeal Court to Status quo ante to passing
of the order on 30th August, 1993.
Mr. Ganguli has, however, contended that the appeal is
being conducted in the name of the appellant, who is not an
interested party any more. Mr. Sen appearing on behalf of
the appellant has seriously disputed this proposition. We
are not inclined to go into this controversy at this stage.
If the appellant has been dispossessed by court order which
has been reversed by the court of appeal, as is the position
in this case, his possession must be restored.
In view of the aforesaid, the order passed by the
appeal court dated 14th January, 1994 is set aside and we
remand the case back to the appeal court. The appeal court
will direct an enquiry as to whether Prasanna Kumar Roy
Karmakar was the person who was actually evicted from
possession on the strength of the order passed on 30.8.1993
and, if so, restore Prasanna Kumar Roy Karmakar back into
the possession of the disputed premises. Before passing any
order the court must satisfy itself as to the true identity
and the wish of the appellant, Prasanna Kumar Roy Karmakar.
If necessary, the Court will direct Prasanna Kumar Roy
Karmakar to be personally present in the Court.
The appeal court will be at liberty to pass such order
in the interest of justice as it thinks fit after
ascertaining the facts and in accordance with law. The
respondents, who were the writ petitioners in this case,
will pay costs assessed at Rs. 1,000/- to the appellant.