Kumar Roy Karmakar Vs. State of West Bengal & Ors  INSC 462 (26 March 1996)
S.C. (J) Sen, S.C. (J) Singh N.P. (J) Sen, J.
1996 AIR 1517 1996 SCC (3) 403 JT 1996 (3) 647 1996 SCALE (3)239
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.
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
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.
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.
happened thereafter was also very unfortunate for the appellant. The appeal
court on October 14,
1993 passed 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.
being so, we allow this appeal and set aside the order under appeal.
parties to act on a signed copy of the minutes of this order on the usual
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.
further application, therefore, was made to the appeal court for necessary relief.
On 14th January, 1994 the appeal court passed the
appeal has already been disposed of and we have accordingly become functions
officio. This application can therefore no longer be entertained and is
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.
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.
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.
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.
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.
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
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.
necessary, the Court will direct Prasanna Kumar Roy Karmakar to be personally
present in the Court.
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.