Calcutta High Court (Appellete Side)

Swati Das vs The State Of West Bengal And Others on 12 July, 2022

                     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

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE

THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

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

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

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.

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

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

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."

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

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-

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.