Calcutta High Court (Appellete Side)
Swati Das vs The State Of West Bengal And Others on 12 July, 2022
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
Reserved on: 30.06.2022
Pronounced on: 12.07.2022
MAT 683 of 2022
with
CAN 1 of 2022
Swati Das
...Appellant
-Vs-
The State of West Bengal and Others
...Respondents
AND MAT 682 of 2022 with CAN 1 of 2022 Swati Das ...Appellant
-Vs-
The State of West Bengal and Others ...Respondents Present:-
Mr. Joy Saha, Sr. Advocate Mr. Sourajit Dasgupta, Mr. Soumya Nandi, Mr. Biswajit Kumar, Mr. Debayan Sen, Advocates ... for the Appellant Mr. Subhabrata Datta, Mr. Abdus Salam, Mr. Raja Saha, Mr. Shayak Chakraborty, Advocate ... for the State Mr. Bikash Ranjan Bhattacharya, Sr. Advocate Mr. Abhratosh Majumdar, Sr. Advocate Mr. Aniruddha Chatterjee, Mr. Avik Datta, Mr. Srijib Chakraborty, Mr. Pankaj Agarwal, Ms. Pallavi Ray, Advocates ... for the respondent No. 4 Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE 2 Prakash Shrivastava, CJ:
1. In MAT 683 of 2022, appellant has challenged the order of the learned Single Judge dated 9th of December, 2021 passed in WPA 19431 of 2021 directing the eviction of the appellant from the house of the respondent no. 4 herein (writ petitioner). Since the above order was passed in ex parte proceedings, therefore, appellant had applied for recall of the above order and the learned Single Judge by order dated 12th of April, 2022 has rejected the application for recall, hence, MAT 682 of 2022 has been filed challenging that order.
2. Respondent no. 4 herein (writ petitioner) had approached the Writ Court by way of the writ petition under Article 226 of the Constitution with the plea that the appellant was his daughter-in-law married to his son, Niladri Maiti @ Rishi. Appellant was residing in Midnapore as also in Kolkata in the second floor of premises No. 46A, Harish Chatterjee Street, Kolkata alongwith her husband, whereas, the respondent no. 4, along with his wife was residing in the first floor and both the floors belong to the respondent no. 4. It was further alleged in the writ petition that the appellant had started harassing and torturing the respondent no. 4, his wife and his son, physically and mentally, which compelled the son of the respondent no. 4 to go abroad and file a suit for divorce which was decreed in March, 2021 but the appellant had continued to reside in one room at the south-west corner of the second floor premises and had continued to harass the respondent no. 4. It was also alleged that the respondent no. 4 had filed a complaint in Kalighat Police Station on 25th of November, 2021 but no action was taken by the police, therefore, the writ petition was filed alleging that the respondent no. 4 was a senior citizen and appellant was a mere licensee in the second floor and making a prayer to evict the appellant from the room she was occupying on the second floor and direct the police authorities to restrain the appellant from 3 committing any cognizable offence or nuisance and command the appellant to immediately leave the house of the respondent no. 4 by restoring the possession of the respondent no. 4 on the part of the second floor in possession of the appellant.
3. Learned Single Judge on 9th of December, 2021 had directed the Officer-in-Charge of the Kalighat Police Station to escort out the appellant from the second floor portion of the flat she was occupying by further directing that the appellant will be allowed to take out all her personal belongings from the said residence in presence of atleast three personnel from Kalighat Police Station and had adjourned the case calling for a report from the Officer-in-Charge, Kalighat Police Station. In pursuance to the aforesaid order, appellant was evicted and thrown out of the second floor portion on 10th of December, 2022, thereafter, she had filed an application for recall of the order dated 9th of December, 2021 passed in WPA 19431 of 2021 on the ground that she had no knowledge of the writ petitions and on 9th of December, 2021, she was evicted from the marital home summarily in a single apparel forcefully leaving behind her personal belongings. It was also stated in the application that even the decree of divorce was obtained ex parte and in the background of the plea taken in the application, a prayer was made before the learned Single Judge to recall the order dated 9th of December, 2021 and to restore the physical possession of the appellant in the premises in question.
4. Learned Single Judge in the order dated 12th of April, 2012 has taken the view that the Writ Court under Article 226 of the Constitution has jurisdiction to evict sons and daughter-in-laws from the residence of senior citizens if the latter is uncomfortable or unconvinced by the presence of any of the former and that the appellant and her husband are at best licensees in the house of the respondent no. 4. He has further stated in the order that the appellant had never claimed any right of residence or share of household against the respondent no. 4 or her 4 husband under the provisions of The Protection of Women from Domestic Violence Act, 2005 (in short, 'Act of 2005') nor she had asserted any domestic violence. The learned Single Judge also rejected the plea of the appellant that she was not served notice of the writ petition and has accordingly, dismissed the application for recall of the order.
5. Learned counsel for the appellant submits that the ex parte decree in the suit for divorce was passed on 5th of December, 2020 and that the appellant was not served in the suit and the suit for divorce itself was decreed in a very short time, hence, the appellant had filed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 and the divorce decree has been stayed against which a petition has been filed by the husband but there is no interim stay, therefore, matrimonial relations are continuing. He has further submitted that there was no complaint prior to 25th of November, 2021 by the respondent no. 4 to police or any other authority and that the police authorities had suo motu given the report dated 6th of December, 2021 to the Writ Court without making any enquiry from the appellant. He further submits that the respondent no. 4 is a senior advocate of this Court, therefore, the matter has been dealt with in such a manner depriving the appellant of all the opportunities and that it is a case of fraud because in the writ petition, a different address of the appellant is given than the one given in the divorce suit and at the most, it can be said to be a dispute between daughter-in-law and father-
in-law for which writ is not a remedy. He further submits that the writ petition was filed by making incorrect allegations and the notice of writ petition was never served upon the appellant. Learned counsel for the appellant has also submitted that offer of the respondent no. 4 to pay rent of the flat is not acceptable as she has a right to reside on the premises in question and raised grievance against the manner in which she has been thrown out of the house.
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6. Learned counsel for the respondent has opposed the petition by submitting that the appellant is now residing in a separate flat and the son of the respondent no. 4 is residing abroad and the respondent no. 4 wants to live peacefully, therefore, now he is ready to pay the rent of the flat in occupation of the appellant and that Section 3 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short, 'Act of 2007')gives overriding effect to the said Act under which the respondent no. 4 has the right.
7. Having heard the learned counsels for the parties and on perusal of the record, it is noticed that it is not a case where the respondent no. 4 had invoked the provisions of Act of 2007 before the Tribunal by filing any application in terms of Section 5 of the Act. The Act of 2007 provides for adjudication of such an application by the Tribunal by holding summarily enquiry for determining the amount of maintenance. Against the Tribunal's order, appeal lies to the Appellate Tribunal. It is also not a case of transfer of any property in violation of Section 23 of the Act of 2007. Nothing has been pointed out to show that under the provisions of the Act of 2007, such an order of eviction could be passed. So far as the Act of 2005 is concerned, in that Act also complete procedure has been provided and the Magistrate has been empowered to deal with the applications of domestic violence and against his order, appeal lies to the Court of Sessions. Undisputedly, none of the parties have approached respective forum under the Act of 2007 or Act of 2005.
8. Now, the question arises, if in exercise of writ jurisdiction, learned Single Judge could have entered into the private dispute between the father-in-law and daughter-in-law and could have directed the eviction of daughter-in-law from the premises in question. Hon'ble Supreme Court in the matter of N. Sankaranarayanan vs. Chairman, Tamil Nadu Housing Board and Others reported in (2020) 14 SCC 457, in a case where a private property dispute between the family members was raised in the 6 writ petition, had held that by indirect means in such a manner by filing a writ petition, a dispute inter se private parties could not be allowed to be raised in a writ petition under Article 226/227 of the Constitution and a writ petition for seeking issuance of mandamus against the State and its authorities in relation to the private property dispute is not maintainable.
9. In the matter of Jacky vs. Tiny alias Antony and Others reported in (2014) 6 SCC 508, Hon'ble Supreme Court considering the issue of maintainability of writ petition in a landlord-tenant dispute has held that a writ petition under Article 226 or 227 of the Constitution can neither be entertained to decide the landlord-tenant dispute nor is it maintainable against a private individual to determine an intense dispute including the question whether one party is harassing the other party.
10. In the matter of K.K. Saksena vs. International Commission on Irrigation and Drainage and Others reported in (2015) 4 SCC 670, Hon'ble Supreme Court has held that private law obligations of the State/public authorities not amenable to writ jurisdiction and that private law remedies are not enforceable through extraordinary writ jurisdiction though brought against public authorities. It has further been held that even if writ petition would be maintainable against the authority, before issuing any writ, particularly writ of mandamus, the Court, has to satisfy itself that action of such an authority which is challenged is in the domain of public law as distinguished from private law.
11. Hon'ble Supreme Court in the matter of Radhey Shyam and Another vs. Chhabi Nath and Others reported in (2009) 5 SCC 616 has taken note of earlier judgment on this issue as under:
"9. From the aforesaid narration of events, it is clear that the proceedings in this case arose out of purely civil disputes relating to property and the parties have filed suits before the civil court, and the suits are pending. The parties to the proceedings are all private individuals. Neither the State nor "State" nor an authority under Article 12 is a party to this proceeding. This is clear from the cause-title of this appeal. Now the question is: whether private 7 individuals are amenable to the jurisdiction of writ court in connection with the private disputes relating to property, possession and title between private individuals?
10. As early as in 1957, a Constitution Bench of this Court in Sohan Lal v. Union of India [AIR 1957 SC 529] held that a writ of mandamus or an order in the nature of mandamus is not to be made against a private individual. A writ of and/or in the nature of mandamus normally is issued asking a person to do a particular thing which is in the nature of his public duty.
11. In Sohan Lal rival claims of property were in issue and the learned Judges held in para 5 that the writ courts should refrain themselves from entering the said field. Since in view of the Court such an exercise calls for "entering into a field of investigation which is more appropriate for a civil court in a properly constituted suit to do rather than for a court exercising the prerogative of issuing writs" (emphasis supplied) (see AIR p. 531, para 5).
The learned Judges held that if only it can be proved that the appellant Sohan Lal acted in collusion with Union of India in evicting the respondent Jagan Nath, then an order of mandamus can be issued (see Sohan Lal case [AIR 1957 SC 529] , AIR p. 532, para 7), but it will not issue otherwise.
12. Only in the case of a writ of habeas corpus, can it be issued against a private individual, if it is proved that the private individual is illegally holding another person in detention (see Mohd. Ikram Hussain v. State of U.P.).
13. Following the aforesaid principle, this Court fails to understand how can the writ court intervene in a dispute over property rights between private individuals.
14. Apart from the decision in Sohan Lal, subsequently in Mohd. Hanif v. State of Assam a three-Judge Bench of this Court explaining the general principle relating to the High Court's jurisdiction under Article 226 held that the jurisdiction of the High Court is extraordinary in nature and is vested in the High Court not for the purpose of declaring the private rights of the parties but it is conferred for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of the jurisdiction (see SCC p. 786, para 5).
15. The learned Judges in Hanif case reiterated the principle further by saying: (SCC p. 786, para 5) "5. ... In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction."8
16. The learned Judges in Hanif referred to the decision of this Court in T.C. Basappa v. T. Nagappa and held that: (Hanif case , SCC p. 786, para 5) "5. ... It is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law."
(emphasis supplied) This principle holds good till today.
17. Subsequently also in Hindustan Steel Ltd. v. Kalyani Banerjee this Court relying on the ratio in Sohan Lal held that since serious questions as to the validity of the respondent's title were raised and the dispute is on the possession of land and as the respondent failed to produce any clear, conclusive and unimpeachable documentary evidence, the matter cannot be dealt with by a writ court. Referring to Sohan Lal in para 16, the learned Judges held: (Kalyani Banerjee case , SCC p. 282) "16. ... proceedings by way of a writ were not appropriate in a case where the decision of the court would amount to a decree declaring a party's title and ordering restoration of possession. This Court further held that the proper remedy in such a case is by way of a title suit in a civil court and the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title of the property in dispute was clear."
12. The Division Bench of this Court also in Smt. Papiya Sengupta (nee Mukherjee) vs. State of West Bengal and Others reported in 2014 SCC OnLine Cal 10724, in a matter where the daughter-in-law making allegations of harassment and torture had filed the writ petition, has held that the relief prayed for could not have been granted to the petitioner and various disputed questions as to right of occupation of premises cannot be decided in the writ jurisdiction and writ cannot be said to an appropriate remedy in such a private dispute.
13. In the matter of Partha Sarathi Chandra and Others vs. The State of West Bengal and Others by order dated 8th of June, 2022 passed in MAT 1288 of 2021 in a case where similar order of eviction was passed by learned Single Judge in respect of the dauther-in-law and grandson in a writ petition at the instance of father-in-law, the Division 9 Bench of this Court had set aside the order of the learned Single Judge by holding that in exercise of writ jurisdiction under Article 226 of the Constitution, such a direction was not warranted.
14. So far as the judgment of the learned Single Bench of this Court in the matter of Ramapada Basak and Another vs. State of West Bengal and Others reported in 2021 SCC OnLine Cal 2161, taking the view that in such a dispute writ petition can be maintained is concerned, the said judgment of the learned Single Judge runs counter to the aforesaid judgment of the Hon'ble Supreme Court as also the Division Bench of this Court. So far as the judgment in the matter of Sangita Saha vs. Abhijit Saha and Others reported in (2019) 18 SCC 81 is concerned, that was a case where provisions of the Protection of Domestic Violence Act, 2005 were invoked and after exhausting the remedy of revision, the matter had travelled to the Hon'ble Supreme Court. Similarly, in the Division Bench of this Court in the matter of Anuradha Agarwal vs. Shiv Shankar Agarwal and Others in APOT No. 105 of 2021 by the order dated 16th of July, 2021, the proceedings under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and The Protection of Women from Domestic Violence Act, 2005 were initiated and in that background, the issue relating to shared household/shelter in matrimonial home was decided.
15. That apart it is also noticed that the order dated 9th of December, 2021 was passed by the learned Single Judge in ex parte proceedings wherein the version of the appellant herein was not on record and the eviction was directed solely based upon one sided story of respondent no. 4 without any enquiry about its truthfulness. So far as the report of the police authorities dated 6th of December, 2021 submitted before the learned Single Judge is concerned, there is nothing to controvert the allegation of the appellant that while preparing the report, the statement of the appellant was not taken. It is also noticed that in the application for recall of the order, it was specifically stated by the appellant that the in- 10
laws of the appellant were creating all kinds of pressure to sever all ties with the husband and to dissolve the marriage and the appellant was physically and mentally tortured by her in-laws to vacate the matrimonial house. It was specifically pleaded that notice of WPA 19431 of 2021 was never served upon the appellant.
16. So far as the offer of the learned Counsel of the respondent no. 4 to pay the rent of the flat occupied by the appellant is concerned, the said offer would not correct illegality and the manner in which the appellant has been evicted. Moreover, such an offer is not acceptable to appellant.
17. In these circumstances, we are unable to uphold orders of the learned Single Judge dated 9th of December, 2021 and 12th of April, 2022 passed in WPA 19431 of 2021, hence, they are set aside. Consequently, the respondents are directed to restore the possession of the appellant on the portion of the second floor from which she has been evicted in compliance of the order of the learned Single Judge.
18. The appeal is accordingly allowed.
(PRAKASH SHRIVASTAVA) CHIEF JUSTICE (RAJARSHI BHARADWAJ) JUDGE Later, After pronouncing this order, learned counsel for the private respondent has made a prayer for stay of this order.
We find that no ground is made out to grant the prayer. Hence, the prayer for stay is rejected.
(PRAKASH SHRIVASTAVA) CHIEF JUSTICE (RAJARSHI BHARADWAJ) JUDGE Kolkata 12.07.2022 ________ PA(RB) (A.F.R. / N.A.F.R.)