Prasanna Kumar Roy Karmakar v. State of West Bengal and Ors.

Judgment

The Judgment of the Court was delivered by 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 jurisidction.

Shyamal Kqmar Sen J. on 13th August, 1993 passed a.n 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 er· pa1te order without any notice to the tenant. On 30th August, 1993 the writ petition was finally disposed of on the. basis of the police report. It ,was alleged that Rabin 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 !lat 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 Criniinal 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 P.K.R. KARMA.KAR~. STATE [SEN, J.] petition was moved, taken iip for hearing and fi~al1y: di~po~~d Jr:'A 1teha,;t A was dislodged from the disputed premises with police help. No proper, he~ring w~s given to the respo~dents. A. copy of the pa"lic~ 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 B with law. It was most unfortunate that the Cour.t 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 unkno\vn. to law was· adopted for disposing of a landlordtenant dispute, · I · ,.. .c · .1')'.' "° i What happened tht;reafter. was also very· unfortunate for the appellant. The appeal court on Octobter 14, 1993 passed the following order : , ''fhe Hon'ble A.M. Bhattacharjee,. the Chief JUsitice and. The Hon'ble Justice N.K. Batabyal. October 14, 1993. · Pr~sanna Kr. Roy Karm~kar · Sta_te of West,Bengal & Ors. r THE COURT heard .learned counsel for. the parties. It is .purely ~ pri~ate dispute betweeh the private.parties.'

We ~re fµlly ;ati~fied ·; particularly in view of the de.cision of the .Supre~e'· Court ~eported F · in Mohan Pandey &An; v. Usha Rani Rajgwia· & Ors., AIR (1993) SC 1225, that. the ~it'petition which has given' rise to this appeal ought not to have 'been ent~rt~ined. That being so: we aliow this appeai and set aside the.o~~~r under appe;."i, All parties to act' on a signed copy of the minutes of this order on the usual undertakillg.'' ·This order, however, did not ·enable the appellant to get back possession. The appe'al ~ou~t lost sight of the" fact that th~ writ Co~rt had ' intervened in a pur~ly p;i~ate oispute and as a r~sult ·of its order di~ H 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 ftmctlis 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 aforesaid 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 ari 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. Act us curiae neminem gravabit - An acr of the Court shall prejudice no man. It was the duty of the Appeal Court to restore status quo ante to passing of the order on 30th August, 1993. Mr. Ganguli has, however, contended that the appeal is being conducted in tho name of the appellant, who is not an interested party any more.

Mr. Sen appearing on behalf of the appellant has seriously disputed I P.K.R. KARMAKAR v. STATE [SEN, J.) this proposition. We are not inclined to go into_ this ,controversy at this A stage. If the appellant has been dispossessed.by cou_rt_order which has been reversed by the court of ~ppeal, as is the p~sition in thls 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 B _court. '.fhe appeal court will direct an enquiry as to whether Prasanna Kumar Roy Karmakar ~as the person who was actuaily 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 C as to the true identity and the wish of the appellant, Prasanna Kumar Roy Karmakar.,If-necessary, the.Court will direct.Prasanna Kuinar 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 D i law. The responden\s, who were the writ petitioners in this -case, .will pay costs assessed at Rs. 1,000 to the appellant. T.N.A. Appeal disposed of . . ;: •. 1,.:. : t.