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1992 Supreme(Cal) 101
HIGH COURT OF CALCUTTA
Susanta Chatterjee, J.
Mrs. K. Suleha Begum
Vs
State of West Bengal & Ors.
WRIT APPLICATION Matter No. 1548 of 1991
Decided on : March 3, 1992
Pradip Das, Lal Mohan Hajra for the petitioner;
Ashoke Kumar Dey for the private respondent;
Samar Rudra for the State.
A landlord who obtains demolition orders by practicing fraud upon the court and demolishes a tenanted property is liable to restore possession or provide alternative accommodation to the tenant.
Headnote:
CALCUTTA MUNICIPAL CORPORATION ACT - SECTION 411(4) - TENANCY ACT - SECTION 18, 18A - TRANSFER OF PROPERTY ACT - SECTION 108(E) - LEASE - DEMOLITION OF TENANTED PROPERTY - RESTORATION OF POSSESSION - FRAUD UPON COURT - ABUSE OF PROCESS - STATUS QUO ANTE.
Fact of the Case:
The writ petitioner, claiming ownership of a dilapidated building, sought a writ of mandamus directing the police and municipal authorities to carry out an order of the Executive Magistrate directing the demolition of the building and to maintain law and order. The private respondent, a tenant in the building, opposed the petition, alleging that he had not been served with the necessary notices and that the demolition was illegal. The petitioner claimed that the demolition was necessary due to the dangerous condition of the building and that the private respondent had been duly served with notices.
Finding of the Court:
The court found that the petitioner had practiced fraud upon the court by concealing the fact that the private respondent was a tenant in the building and by obtaining demolition orders without serving the private respondent with the necessary notices. The court held that the demolition of the tenanted portion of the building was illegal and that the private respondent was entitled to restoration of possession or alternative accommodation.
Issues: 1. Whether the petitioner had practiced fraud upon the court by concealing the fact that the private respondent was a tenant in the building and by obtaining demolition orders without serving the private respondent with the necessary notices. 2. Whether the demolition of the tenanted portion of the building was illegal. 3. Whether the private respondent was entitled to restoration of possession or alternative accommodation.
Ratio Decidendi: 1. The court held that the petitioner had practiced fraud upon the court by concealing the fact that the private respondent was a tenant in the building and by obtaining demolition orders without serving the private respondent with the necessary notices. The court relied on the fact that the petitioner had deliberately suppressed the notice and proceedings before the court, and that there was no effective service upon the private respondent before the actual orders were made affecting the right of a tenant. 2. The court held that the demolition of the tenanted portion of the building was illegal. The court relied on the fact that the petitioner had not served the private respondent with the necessary notices and that the demolition was carried out without the private respondent's knowledge or consent. 3. The court held that the private respondent was entitled to restoration of possession or alternative accommodation. The court relied on the provisions of the West Bengal Premises Tenancy Act, which protect the rights of tenants even in cases where the landlord obtains a decree for eviction on the ground of building, re-building, and development.
Final Decision: The court allowed the private respondent's petition and directed the petitioner to restore the tenanted portion of the building or provide alternative accommodation to the private respondent within six months. The court also directed the petitioner to pay costs of 200 gms to the private respondent.
A short but an interesting point has arisen in the instant case. The writ petitioner K. Suleha Begum prayed for a writ of Mandamus to direct the respondent nos. 2 to 4 viz. the Commissioner of Police, the Deputy Commissioner of Police (South) and the Officer-in-Charge, Park Street Police Station to carry out the order of the learned Executive Magistrate, 11th Court, Calcutta dated 9.4.1991 in Case No. M/325 of 1991 and direct the private respondent no. 7 Mr. A. G. Sirdar and his men and associates not to obstruct the repair work in terms of the order of the Calcutta Municipal Corporation after removing and/or demolishing old dilapidated existing structure in respect of the premises no. 36, Elliot Road, Park Street, Calcutta and also to direct the Police Authorities to maintain law and order in and around the said premises and to take all steps from time to time under s. 10A of the Calcutta Police Act and also under SS. 141, 142, 341, 120B and 506 of the Indian Penal Code against the private, respondent no. 7 treating the complaint as F.I.R. in accordance with law and for such other necessary order or orders. It was stated that the petitioner is the owner of the premises no. 36, Elliot Road, Park Street, Calcutta and the premises is an old one. The petitioner requested the District Building Surveyor, City Architect, Calcutta Municipal Corporation to allow the repair work in terms of a letter dated 14.8.90. The Building Surveyor, Borough VI(B) allegedly inspected the premises and passed an order directing the petitioner to make urgent repair otherwise the same may be collapse at any moment. At the time of repair, the respondents, as alleged did not allow the petitioner to carry out the repair work with the help of local anti-social elements and removed the masons and labours. The situation became very serious and the petitioner had to lodge a complaint before the Office-in-Charge, Park Street Police Station. The petitioner had to move an application under s. 144(2) of the Criminal Procedure Code before the Learned Executive Magistrate, 11th Court being Case no. 325 of 1991 dated 9.4.1991 directed the Officer-in-Charge to enquire and report by 21.5.91 and to issue a notice to the Opposite Parties to have their say, if any, by date fixed. The police, however, was directed to maintain peace. The said order 9.4.91 was served upon the Officer-in-Charge, Park Street Police Station and since the police authorities did not take steps to implement the order of the learned Executive Magistrate and being aggrieved by and dissatisfied with the illegal acts on the part of the respondents and Calcutta Municipal Corporation, the petitioner came to this Court to seek reliefs as indicated above on the grounds that the Police Authorities should have carried out the orders passed by the learned Executive Magistrate and to take proper steps for maintaining the law and order.
2. Upon notice to the learned Advocate for the State and the District Building Surveyor, Borough-VI(B) the petition was moved and thereafter affidavit-of-service has been filed sworn by Lakshi Kanta Koley, a Court Clerk of Mr. Lakshmi Mohan Hajra, Advocate that in terms of the direction of this Court dated 18.4.91 he is alleged to have served a copy of the writ petition upon the respondent no. 7 and the respondent no. 7 had received the same by putting his signature on the front portion of the Advocate's letter dated 18th of April, 1991. The receipt dated 18.4.91 has been annexed to the affidavit-in-service. While the writ petition came up for hearing before this Bench as a Court application, this Court directed the writ petitioner to serve a notice on the private respondent no. 7 Mr. A.G. Sirdar. The matter was made returnable on the 24th of April, 1991. On 24th of April, 1991 the matter appeared in the list and this Court had recorded that none appeared on behalf of the private respondent and considering the grievances of the writ petitioner that the building is in dilapi
