Sankar Kumar Mukherjee v. State of West Bengal — 1988 DIGILAW 362 (CAL)

JUDGMENT 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. 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 1988, has been filed before the learned District Judge and the matter is pending. 4. 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 1988, has been filed before the learned District Judge and the matter is pending. 4. In the background or such state of affairs, the private respondents have prayed before this Court for vacating the ex parte interim order made on 13.5.88 and also for demolition of the boundary wall alleged to have been erected on 14.5.88 by practising fraud upon the court. There are certain allegations and counter-allegations, inasmuch as the petitioner has filed an A/O controverting the allegations made by the private respondents for vacating the interim order and for removal of the wall in question. Incidentally, it appears that while the matter was mentioned by the private respondents and the matter appeared in this court, nobody was appearing for the petitioner on 1.8.88. Considering the materials on record and the submissions made on behalf of the private Respondent Nos. 4 and 5, this court thought it fit to direct the officer-in-charge, Tangra Police Station, to produce the writ petitioner before this court on 18.8.88, as it appeared to this court that by dismissing the writ petition itself there will be no effective adjudication of the matter in dispute and unless the matter is heard in the presence of the petitioner and the private respondents. there will be failure of justice. This court appreciates that Mr. Bihani, learned Advocate practising in this Court promptly appealed before this court and submitted that instead of the police taking steps to produce the petitioner, he will appear for the petitioner and assist this court for effective adjudication of the matter in dispute. It will appear from order dated 18.8.88 that the police authorities produced the petitioner before this court and Mr. Bibani prayed for leave to file A/O disclosing all the relevant facts and the petitioner undertook to be present on the dates of hearing as per the desire of this Court. Pursuant thereto the petitioner filed an A/O and the matter is being heard in the presence of the learned lawyers of both sides. 5. Mr. Das along with Mr. Biswas, learned Advocates appearing for the Respondent Nos. Pursuant thereto the petitioner filed an A/O and the matter is being heard in the presence of the learned lawyers of both sides. 5. Mr. Das along with Mr. Biswas, learned Advocates appearing for the Respondent Nos. 4 and 5, have submitted that the order of the learned Magistrate dated 6.5.88 is not a proper and just order and by suppressing all relevant materials the petitioner has obtained an ex parte order on 13.5.88 behind the back of the Respondent Nos. 4 and 5 asking the police, to render assistance to the petitioner to enable him to erect the wall in question and thereby the mischief has been committed. This court should see that on the basis of an order passed by this court if any mischief is done the same should be undone. This court should not feel hesitant to set things in right order lest any order passed by this court may not affect the right of any persons and before adjudication of the matter in dispute mischief may not be caused. This Court would also see that since the writ petitioner is not present of the matter is disposed of, there will be mockery of justice and the things accomplished will never be set at right and the parties are likely to suffer irreparable loss and injury. 6. Mr. Bihani, learned Advocate for the petitioner has, however, submitted that there are allegations and counter-allegations as to whether the petitioner has the right over the property or as to whether the petitioner has the right over the matter, the same has got to be adjudicated by the appropriate forum by admitting evidence. The ball has been set in motion by filing a civil suit Civil Court is the competent authority to decide all these questions. Once the petition under section 144 of the Code of Criminal Procedure loses its force after the efflux of time, there is nothing for the said Court or even for the writ court to interfere with the matter. The writ petition may be disposed of and even the interim order as passed on 13.5.88 may be vacated, but nothing more can be done by this court. And as to the removal or the wall the matter should be decided by the civil court which is in seisin of the matter and the entire matter is subjudice before the said forum. 7. And as to the removal or the wall the matter should be decided by the civil court which is in seisin of the matter and the entire matter is subjudice before the said forum. 7. Having heard the learned lawyers of the respective parties as indicated above, this court finds with all anxieties that whenever a court entertains a matter and passes an Ex parte order and if anything is accomplished pursuant to the said order, as the said Court at a subsequent stage finds that such an order ought not to have been made, it is the duty of the court to see that the things are brought to proper shape and size and if anything wrong is committed the same should be undone and the parties should not take and advantage of any order which has been obtained by suppression of facts. The question is as to whether the petitioner has the right to erect the wall or he has no right to erect the wall, the same must be decided by the civil court; but this Court will see that the Executive Magistrate has the right to direct the police to see whether the opposite parties have the right, title or interest to oppose any body at the time of erecting the wall nor any body will be taking advantage of an ex parte order from this court to seek police help to march over the right of somebody else. In that event the position will be serious and there will be no security and safety of any person. With greater anxieties this court has considered that such an ex parte order ought not to have been passed by the Executive Magistrate and the magistrate ought not to have found that petition has become infructuous allowing mischief to remain as it is. In that event, the order made by Mukul Gopal Mukherjee, J. has also become infurctuous keeping the person aggrieved in despair. This nebulous state of affair cannot be permitted to remain as it is. This court should rise on occasion to see that if any mischief has been committed or anybody has taken advantage of an ex parte order of his court, things must be brought to right position. This nebulous state of affair cannot be permitted to remain as it is. This court should rise on occasion to see that if any mischief has been committed or anybody has taken advantage of an ex parte order of his court, things must be brought to right position. This court has found that the petitioner ought not to have erected the wall by obtaining an ex parte order from the Magistrate and also by obtaining another ex parte order from this court without allowing the Respondent Nos.4 and 5 to be present while their voice was required to be heard before permitting the petitioner to erect the wall. Considering this aspect of the matter, this court directs the petitioner to remove the wall and the gate which was erected in terms of the order passed on 13.5.88 within a fortnight from date and the police authorities, particularly Respondent No.3, Officer-in-Charge, Tangra Police Station, will take all effective steps to see that this order is carried out and the petitioner removes the wall and the gate accordingly. The application for vacating the interim order is thus disposed of. 8. Since the petitioner does not want to press the writ petition for hearing, the same is also disposed of accordingly. 9. It is made clear that by removing the wall and the gate, this court has not decided that the petitioner has got right to erect the wall. Leave may be sought before the civil court for any appropriate order and the civil court will decide the issue or pass any effective order after bearing both sides without being influenced by this order in any manner whatsoever. With this observation this writ petition is disposed of. 10. This court notes with distress that the Special Officer has not filed any report in terms or order dated 13.5.88. There will be stay of operation of this order for a period of ten days from date, as prayed for.