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1988 Supreme(Cal) 359
IN THE HIGH COURT AT CALCUTTA
SUSANTA CHATTERJI, J.
Sankar Kumar Mukherjee - Petitioner
Vs
The State of West Bengal & Ors. - Respondents
Civil Order No. 4821(W) of 1988
Decided on: September 6, 1988
Advocate Appeared:
Mr. L.C. Bihani for the Petitioner
Mr. D.N. Das, S.K. Biswas, Pradip Ghosh, Surajit Das and Shyamal Sur for the Respondent Nos. 4 & 5
A court has the jurisdiction to vacate an interim order obtained by fraud or suppression of material facts and to direct the removal of any mischief caused as a result of such order.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 144 - INTERIM ORDER - VACATION - EX PARTE ORDER - MISCHIEF - REMOVAL OF WALL - JURISDICTION OF CIVIL COURT.
Fact of the Case:
A writ petition was filed challenging the ex parte interim order passed by the Executive Magistrate under Section 144(2) of the Code of Criminal Procedure, 1973, directing the police to assist the petitioner in erecting a boundary wall on a disputed property. The private respondents, who were not heard before the passing of the interim order, filed an application for vacating the same and for demolition of the boundary wall.
Finding of the Court:
The court found that the interim order was obtained by the petitioner by suppressing material facts and that the petitioner had no right to erect the wall. The court also held that the Executive Magistrate ought not to have passed the interim order without hearing the private respondents and that the order made by the Magistrate was infructuous and allowed mischief to remain as it is.
Issues: 1. Whether the interim order passed by the Executive Magistrate was valid and justified? 2. Whether the petitioner had the right to erect the boundary wall? 3. Whether the court has the jurisdiction to vacate the interim order and direct the removal of the wall?
Ratio Decidendi: 1. The court held that the interim order was obtained by the petitioner by suppressing material facts and that the petitioner had no right to erect the wall. 2. The court held that the Executive Magistrate ought not to have passed the interim order without hearing the private respondents and that the order made by the Magistrate was infructuous and allowed mischief to remain as it is. 3. The court held that it has the jurisdiction to vacate the interim order and direct the removal of the wall in order to prevent further mischief and to protect the rights of the private respondents.
Final Decision: The court vacated the interim order passed by the Executive Magistrate and directed the petitioner to remove the boundary wall and the gate erected pursuant to the said order within a fortnight. The court also directed the police authorities to take all effective steps to ensure that the order is carried out.
The present writ petition was moved on 13.5.88 and while entertaining the said application B.P. Banerjee, J. was pleased to direct the police authorities to carry out the order of the learned order of the learned Executive Magistrate dated 5th May, 1988 as stated in the writ petition and for implementation of the said order Mr. M. Haque, an Advocate of this Court, was appointed as a Special Officer and he was directed to see that the order passed by this court is carried out and he was also directed to submit a report to that effect at the time of hearing.
2. It was stated in the writ petition that one Sankar Kumar Mukherjee the petitioner, is an authorised representative of one Biswanath Roy and he moved an application under section 144(2) of the Code of Criminal Procedure before the learned Executive Magistrate at Alipore, being M.P. Case No. 804 of 1988, and the learned Magistrate passed an order directing the police authorities to take steps so that no breach of peace takes place and also to see if the opposite parties, namely Ramesh Kumar Junejo and Thakur Das Junejo, have got any right, title and interest in the suit land and they may not wrongfully obstruct Sri Biswanath Roy to erect boundary wall in question. A copy of the said application with the order appeared therein was made Annexure “A" to the writ petition It was alleged in the writ petition itself that since the police authorities have failed to carry out the order of the learned Magistrate, the petitioner had no 'other alternative but to move the present writ petition and obtaining an order passed on 13.5.88. It is not disputed that being fortified with the order passed by this court on 13.5.88, the boundary wall in question was raised at the site. Incidentally, it is also found that the learned Magistrate passed an order on 6th May, 1988 without bearing the opposite parties named therein and the order passed by this court on 13.5.88 was also made ex parte and the private respondents were not heard. Subsequently an application for vacating the interim order has been made by the private respondents, namely, Respondent Nos. 4 and 5, Ramesh Kr. Junejo and Thakur Das Junejo. It is alleged that being aggrieved by the said ex parte order of the learned Executive Magistrate dated 6.5.88, the Respondent Nos. 4 and 5 made an application on 16.5.88 in revision before this court in its criminal revisional jurisdiction and Mukul Gopal Mukherjee, J. was pleased to direct the petitioner to appear in the court below and pray by appropriate application for vacation and/or modification of the order dated 6.5.88. If no order is passed thereon by 1.6.88, the petitioners were given liberty to pray before this Court and as the matter stood, no interference was called for in respect of the order dated 6.5.88 but the learned Magistrate was directed to expedite the matter so that any of the legal rights of the petitioner vis-à-vis the opposite parties are not infringed. The learned Magistrate was also directed to keep in mind that without drawing up an appropriate proceeding under section 144 of the Code of Criminal Procedure and without any finding as to the emergency, it was not proper that such interim orders were to be passed.
3. It is submitted that before the said order dated 16.5.88, an order was passed by B.P. Banerjee, J. on 13.5.88 and the wall has been erected on 14.5.88. Pursuant to the order of Mukul Gopal Mukherjee, J the matter was considered by the learned Magistrate at a later stage and having found that the statutory period of 60 days is over, filed and/or disposed of the application without making any specific finding. It is also submitted by the learned Advocates of both sides that a civil suit has been filed by the present petitioner being Title Suit No. 59 of 1988. before the Assistant District Judge, 9th Court, at Alipore wherein an application for temporary injunction was prayed and on refusal to pass any interim order a Misc. Appeal, being No.315 of 19
