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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

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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

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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.