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High Court Of Calcutta
S. K. SEN
SOMENDRA NATH SEN GUPTA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 619 Of 1993
Decided On : 04/28/1993
LEAVE AND LICENSE - POSSESSION - RESTORATION - STATUS QUO - VIOLATION - RESTITUTION - WRIT JURISDICTION - MAINTAINABILITY - ALTERNATIVE REMEDY - SPECIFIC RELIEF ACT, 1877 - SECTIONS 5 AND 6.
Fact of the Case:
The petitioner filed a writ petition seeking possession of the demised premises from the respondent, who was occupying it under a leave and license agreement that had expired. The petitioner alleged that the respondent had surrendered the premises and handed over vacant possession, but had later re-entered and was refusing to vacate. The respondent claimed that he had not surrendered the premises and that the petitioner had obtained the order of status quo from the Magistrate by suppressing material facts.
Finding of the Court:
The court found that the respondent had not surrendered the premises and that the petitioner had obtained the order of status quo from the Magistrate by suppressing material facts. It also found that the petitioner had violated the order of status quo by removing the respondent's belongings from the premises.
Issues: 1. Whether the writ petition was maintainable in light of alternative remedies available under the Specific Relief Act, 1877? 2. Whether the petitioner had obtained the order of status quo from the Magistrate by suppressing material facts? 3. Whether the petitioner had violated the order of status quo by removing the respondent's belongings from the premises?
Ratio Decidendi: 1. The court held that the writ petition was not maintainable in light of alternative remedies available under the Specific Relief Act, 1877, Sections 5 and 6, which provide for adequate remedy in such circumstances. 2. The court found that the petitioner had obtained the order of status quo from the Magistrate by suppressing material facts, as the respondent had not surrendered the premises and the petitioner had removed the respondent's belongings from the premises in violation of the order of status quo. 3. The court held that the petitioner had violated the order of status quo by removing the respondent's belongings from the premises.
Final Decision: The court dismissed the writ petition as not maintainable and directed the police to restore possession of the premises to the respondent. It also clarified that the findings and order passed in the writ petition would not have any effect on any civil proceedings that the parties might institute.
( 1 ) THE facts inter alia leading to this writ petition are that there was an agreement for leave and licence dated 3/08/1991, between the father of the writ petitioner and the respondent No. 5 on the basis of which the respondent No. 5 was to stay in two rooms and one toilet in the ground floor of premises No. 23/34 Gariahat Road, Police Station Lake, Calcutta-29 up to 5/07/1992. It is also the case of the petitioner that two notices were served dated 2/04/1992 and 25/06/1992, respectively upon the respondent No. 5 asking him to deliver vacant possession on the expiry of the licence period i. e. 5/07/1992. It has been alleged that on receipt of the said two notices, on 19/02/1993 the respondent No. a delivered vacant possession of the demised premises but kept few articles in one of the room of the demised premises with a promise and/or assurance that he would take back his goods within a period of a fortnight, in default he will pay Rs. 100. 00 per day as damage charges for keeping those articles in the said room.
( 2 ) IT has also been alleged that after 5/07/1992 the writ petitioner or his father did not take a single Paise on account of license fee and after 5/07/1992 the electricity charges in respect of the said demised premises were borne by the writ petitioner.
( 3 ) IT is also the contention of the writ petitioner that since the respondent No. 5 tried to take forcible entry on 3/03/1993 (morning) in the demised premises there was a Section 144 proceeding on 3/03/1993 being Case No. MP 448 of 93 wherein the learned Executive Magistrate passed an order upon the Lake Police Station to enquire into the matter and to submit a report and as order of status quo was also passed.
( 4 ) ON 5/03/1993 a writ petition was moved by the petitioner before me and order was passed directing the Officer-in-Charge, Lake P. S. to carry out the order dated 3/03/1993 passed by the learned Magistrate and to see that no breach of peace takes place in the area. The Officer-in-charge, Lake Police Station was directed to submit a report on 12-3-1993.
( 5 ) THERE was enquiry by the police in the premises in question on 8th March and 9th March, 1993 and after holding the enquiry a report dated 15/03/1993 was filed by the O. C, Lake P. S. in the Court. In the report the O/c mentioned that in one room of the demised premises an old person was lying in the cot and in other room the computer and other goods of the respondent No. 5 were lying in a wrapped condition.
( 6 ) ON 9/03/1993 the respondent No. 5 came to learn that he has been dispossessed from the premises and as such lodged a complaint on 11/03/1993.
( 7 ) ON 12/03/1993 the matter was mentioned at the first sitting of the Court. Direction was given to serve notice upon O. C. Lake P. S. to be present in Court at 2 p. m. but Lake P. S. refused to accept notice.
( 8 ) ON further mentioning at 2 p. m. the Registrar Original Side was directed to communicate the order of the Court requesting O. C. Lake P. S, to be present in Court with record on 15-3-1993 and in default of appearance it was ordered that appropriate steps would be taken to arrest the O. C. for his production in Court on 15-3-93.
( 9 ) ON 15th March, Officer-in-Charge, Lake Police Station appeared in Court and filed this report after hearing the parties and order was passed inter alia by me directing the officer-in-Charge to hold an enquiry on this day at the locality to ascertain whether the computer business was carried on at the said premises by respondent No. 5 upto 6-3-93. Officer-in-Charge was further directed to make an inventory of goods and articles in the tenanted premises in presence of the parties at 1 p. m. on the same date and to hand over the respondent No. 5 after proper identification of the goods. The O. C. was to put his locks in the rooms were the goods were lying.
( 10 ) PURSUANT to the said direction passed by me dated 15/03/1993, the Officer-in-Charge of Lake P. S. made an inventory in
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