Holding

The High Court exceeded its writ jurisdiction in a private landlord‑tenant dispute and its order was ultra vires; consequently the appellate court must restore the tenant’s possession and the order of 14 January 1994 is set aside.

Summary

A landlord and tenant dispute was taken to an executive magistrate under Section 144 of the CrPC, after which the landlord filed a writ petition under Article 226 of the Constitution in the High Court. The High Court, without notice or hearing, ordered the police to ensure the landlord’s ingress and egress, leading to the tenant’s eviction. The tenant appealed; the appellate court set aside the High Court order but failed to restore possession and later dismissed the tenant’s relief application as functus officio. The Supreme Court held that the High Court had exceeded its writ jurisdiction in a private landlord‑tenant matter, violated natural‑justice principles, and that the appellate court must restore the tenant’s possession. Accordingly, the Supreme Court set aside the appellate court’s January 1994 order and remanded the case for an enquiry and restoration of possession, awarding costs to the tenant.

Issues considered

Whether a writ petition under Article 226 can be entertained in a private landlord‑tenant dispute.
Whether the High Court exceeded its jurisdiction and violated principles of natural justice by passing an ex‑parte order directing police action.
Whether the appellate court, after setting aside the writ order, is obligated to restore the status quo ante and grant relief to the evicted tenant.
Application of the maxim actus curiae neminem gravabit in the context of judicial orders.

Legislation cited

Code of Criminal Procedure, 1973s. 144
Constitution of Indias. 226

Subjects

writ jurisdictionArticle 226landlord‑tenant disputeSection 144 CrPCnatural justiceex‑parte orderfunctus officioactus curiae neminem gravabitpossession

Judgment

\./

A PRASANNA KUMAR ROY KARMAKAR
v. •
STATE OF WEST BENGAL AND ORS.

MARCH 26, 1996

B [N.P. SINGH AND SUHAS C. SEN, .TJ.)

Constitution of India, 1950: Anicle 226.

High Coun-Wiit Jurisdiction-Private dispute between landlord and
C tenant-Landlord initiating proceedings under section 144 of the Oiminal
Procedure Code--Invoking wiit jwisdiction thereafte,......[)isposal of Wlit 011 the
basis of police report-No proper hea1ing given to tenant--Copy of police
repo1t also not given to tenant-Direction by High Court-Dislodging of tenant
from disputed premises-Held w1it jwisdiction was not properly exercised by
High Cowt.
D
Appellate Coun--Orde1' passed by-Enforcement of

Maxim· ''.Acl!Js 01iiae Neminem Gravabit"--Meaning and applicability
of
E In a private dispute between a. landlord and tenant the former
initiated proceedings in the Court of Executive Magistrate under Section
144 of the Code. of Criminal Procedure, 1973. Thereafter the landlord
move.d the High ~ourt under Article 226 which passed an interim order,
without notice to the appellant-tenant, directing the police to file its report.
F The landlord's petition was finally disposed on 30th August, 1993 on the
basis of the police report. On the basis of this order, the landlord with the
help of police authorities .evicted the tenant from his flat and got back
possession of tenanted premises without having recourse to the usual
landlord tenant proceedings before appropriate forum in accordance with
G law.
The Appellate Court allowed the tenant's appeal and by its order
dated October 14, 1993 set aside the order of writ Court. However, even on
the basis of appellate Court's order the appellant-tenant was not able to
get back the possession. By its order dated 14th January, 1994 the Appel-
H late Court rejected the application filed by tenant for relief on the ground
912
P.K.R. KARMAKAR v. STATE 913
·'
that after disposal of appeal it became ftmctus officio. The tenant preferred A
appeals before this Court.

Disposing the appeals, this Court

HELD : 1. The \V'"it Court had exceeded its jurisidction in intervening
in a private dispute. ·The scope of writ jurisdiction was lost sight of by it B.
a'!d an .extraordinary situation was brought about by passing a~ improper
and unjust order. It wa.s m?st unfortunate that t.he Court intervened in a.
proceeding
. under
. Section
.· . 144 of the Criminal
. Procedure Code- which
- was ;

ad\lally being heard .and a drastic order of this nature was passed by the
·i Court in such a manner without issuing a Rule Nisi and without any proper
hearing. A procedure un~o~ to law was ~dopted for disposing of a C
landlord-tenant dispute. [916-E; 914-H; 915-B-C]
• - i •' . . • . t . . .

Mo/Jan Pandey & Anr. v. Usha Rani Rajgaria & Ors., AIR (1993) SC
1225, cited, ' . . ..

:Z. As a result of the order passed by Writ Court the appellant liad · D
been dispossessed by the police. Since by ~n erroneous order the appellant
had been evicted from the possession of the disputed p'remises," it was the
duty· of tlie lippeal court, after reversing the order of the Trial ·court, to
restore the appellant back info possession; Otherwise, ·even after' succeed-
ing in the .appeal, the appellant will r~main·without remedy and out· of E .
possession as .a result of the order passed by the Court: Actus cliiiai
neminem Gravabit ·An act of the c·ourt shall prejudice.no man, Therefore,
the order passed by the appeal court on 14th January, 1994 is set.aside and
the case is remanded back to appeal court which shall'conduct an enquiry
·as lo whether the appellant \\'as acttially evicted .from possession and 'if so,
restore him back into the possession of the disputed premises. · F .
·•·• [915-H; 916'E-H; 917-B-C]
• < - • • ._ -~ _. •, • ' ~: ,_ '1-'

CIVIL APPELLATE .JU.RISDICTION ·: Civil Appeal Nos .. 5099-'
sfoo ~r 1996. ·· · · · · " ' · · ·' ' · ·· ·· • • ·
,. .. .~

"
· Frain the Juc!gment and Order tlated 14.10.93 of the Ca!Cutta High G. ·
~,.
Cou•t in Appeal No. Nil of 1993.

Ashok Sen and Bijan· Kumar Ghosh for the Appellant. ·;
t· .. ,__,
~!. ,< ·• 'n- .-1 1 r,,~
A.K. Ganguli, Somnathmukherjee; Avijit Bhattacharaya, ·Ms, Sarla.
Chandra,.(NP) for the Respondent Nos. 1-~.' ,• " . , ,,,. H ,
914 SUPREME COURT REPORTS [1996] 3 S.C.R.

A 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
B 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
C 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.
D 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
E 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
F 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
G 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
H 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 teha,;t A
1

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 landlord-
tenant dispute, · I · ,.. · '· " C
.c · .1')'.' "° i
What happened tht;reafter. was also very· unfortunate for the appel-
lant. The appeal court on Octobter 14, 1993 passed the following order :

, ''fhe Hon'ble A.M. Bhattacharjee,. the Chief JUsitice
i~ and. ··i D
The Hon'ble Justice N.K. Batabyal.
.
October 14, 1993.
. . '"'
· Pr~sanna Kr. Roy Karm~kar ·
• 1 ,
E
v.
Sta_te of West,Bengal & Ors.
·• .. . • ~ :, '1

t' ,, ' 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,. '
. , ..
·. .. ., ·. . . , ., . G
All parties to act' on a signed copy of the minutes of this order
on the usual undertakillg.'' . ' · . "'
! ~ • ~, ... . ·1 ~.'
.. - i'- . ~ ,
. .

·This order, however, did not ·enable the appellant to get back pos-
session. 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
·. I
~

916 SUPREME COURT REPORTS (1996] 3 S.C.R.

A 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 follow-
ing order:

B "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
C 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.

D 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
E 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
F 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
G 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 con-
ducted in tho name of the appellant, who is not an interested party any
H more. Mr. Sen appearing on behalf of the appellant has seriously disputed
P.K.R. KARMAKAR v. STATE [SEN, J.) 917

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
. .. . . . . the.Court,. will
Karmakar.,If-necessary, ,. .
direct.Prasanna
~ ' .
Kuinar Roy Kar-
makar 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 ~·' ;
T.N.A. Appeal disposed of.

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