ORDER 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. 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 dilapidated conditions and unless prompt steps are taken, it may cause danger to person and property and considering all aspects of the matter the Calcutta Municipal Authorities were directed to take immediate steps for demolition, if the building is in a precarious state and the Deputy City Architect will visit and file a report with liberty to mention after filing of the report. On 3rd May, 1991 Calcutta Municipal Corporation Authorities made report knowing dilapidated conditions of the building and suggested in their opinion the entire second storey building of the property requires immediate demolition. On 8th May, 1991, it was recorded that in terms of the report Deputy City Architect has filed a report and visiting the site that the entire second storey including the tenanted portion is not repairable and may collapse at any moment. It was made clear that although the private respondent no. 7 has not appeared in spite of notice and this Court recorded the submission of the writ petitioner that the tenant has vacated and the tenanted, portion is under lock and key. Accordingly, this Court directed Calcutta Municipal Corporation to take effective steps against dilapidated portion of the building immediately. On 20th May, 1991 Calcutta Municipal Corporation Authorities intimated the writ petitioner for vacating the second entire storey before 7th June, 1991 on which date the second storey will be demolished under s. 411(4) of the Calcutta Municipal Corporation Act as found by the Municipal Commissioner on 23rd May 1991. A copy of the letter was allegedly sent to the tenant A.G. Sirdar. On 7th June, 1991 Calcutta Municipal Corporation Authorities as per earlier notice dated 20th May, 1991 demolished the entire second storey of no. 36, Elliot Road, Calcutta. Thereafter, on 24th June, 1991 the present application has been filed by the respondent Mr. A.G. Sirdar praying inter alia:- (a) The Central Bureau of Investigation and the Police Authorities do make an enquiry into the matter and re-submit a report : (b) The writ petitioner should allow the respondent no. 7 to go to the first floor of the premises no. 36, Elliot Road and the said floor be made habitable by the writ petitioner upon making necessary construction and to permit the petitioner to dwell therein. (c) Calcutta Municipal Corporation be restrained from sanctioning any fresh plan for new construction of the said premises by demolishing the old structure i.e. ground floor in which the petitioner and her family are staying. 3. On 20th June, 1991, this Court directed that the writ application of the private respondent no. 7 and the affidavit of service be listed and parties are directed to maintain status quo as on that date and directed the parties to file their respective affidavits. 3. On 20th June, 1991, this Court directed that the writ application of the private respondent no. 7 and the affidavit of service be listed and parties are directed to maintain status quo as on that date and directed the parties to file their respective affidavits. It appears from the affidavit filed by the private respondent that he is a recorded tenant and he was included in respect of the first floor of the premises no. 36, Elliot Road by the landlords Subodh Charan Law and Probodh Char fin Law on or about 1st of January, 1971. Since then the tenant is in occupation of the first floor of the premises. The aforesaid landlords filed an eviction suit against the petitioner and the said suit is still pending before the City Civil Court at Calcutta. One Ashoke Burman purchased the premises and his name was added in the pending ejectment suit. Sometime in 1990, the writ petitioner K. Suleha Begum is alleged to have purchased the said property and also filed all application before the learned City Civil Court to get her name added. After the said purchase, the writ petitioner and her husband were allegedly trying to oust the tenant, the private respondent/no. 7 and to get the vacant possession of the tenanted portion and initiated several proceedings and she was not successful. 4. It is stated further that the tenant was peacefully occupying the tenanted portion but unfortunately on 7th June, 1991 at about 12 noon, the petitioner and her husband accompanied by the Police official of Park Street Police Station as well as Demolition Squad of the Corporation came to the premises in question and have thrown out all household goods and valuable articles on the street and they have completed the demolition and left. The private respondent came to know that in view of the order of this Court the order of demolition has been carried out. They caused searches and made an application that Lakshi Kanta Koley a clerk of Mr. Lal Mohan Hajra. Advocate for the writ petitioner has sworn a false affidavit and in fact, no notice has been served upon the private respondent. They caused searches and made an application that Lakshi Kanta Koley a clerk of Mr. Lal Mohan Hajra. Advocate for the writ petitioner has sworn a false affidavit and in fact, no notice has been served upon the private respondent. It is alleged that the writ petitioner and her husband in collusion and conspiracy with the learned Advocate and/or his Clerk have done the mischief and obtained the order in their favour by practising fraud upon this Court and in clear abuse of the process of law had caused the eviction of the tenant. The tenancy in question has not been determined and while a suit for eviction has been pending, the writ petitioner in a circuitous process, has obtained the fictitious report of the Calcutta Municipal Corporation Authorities and as such the matter should be referred to the Deputy Commissioner, Detective Department for enquiry and the tenant should be permitted to stay at the first floor of the premises. 5. In the affidavit-in-opposition filed on behalf of K. Suleha Begum, it is disclosed that the private respondent no. 7 was occupying a portion of the first floor and since the said building was lying in a dilapidated/dangerous conditions and since there was a chance for collapse of the said building, the respondent no. 7 removed the valuable goods and fittings earlier and started residing at no. 107P, Ripon Street, Calcutta and everyday the respondent no. 7 used to come for watching this matter but did not stay during the night time. The writ petitioner having no other alternative moved the writ application under Article 226 of the Constitution and served a copy of the writ petition upon all the respondents including the private respondent no. 7 and in particular the respondent 7 received the copy of said application and he was aware of the proceedings. It is further disclosed that it would appear from the reports submitted by the Calcutta Municipal Corporation before this Court that prior to the fixing the date of inspection i.e. on 24th April, 1991, the respondents were informed by the Calcutta Municipal Corporation and the respondent no.7 has illegally denied that he has not received any copy of the notice. It is further disclosed that it would appear from the reports submitted by the Calcutta Municipal Corporation before this Court that prior to the fixing the date of inspection i.e. on 24th April, 1991, the respondents were informed by the Calcutta Municipal Corporation and the respondent no.7 has illegally denied that he has not received any copy of the notice. The Deputy City Architect inspected the premises and filed a report on 8th May, 1991 and on the basis of the said report of the Deputy City Architect and in view of the fact that the private respondent no.7 did not appear inspite of the notice, the final order was made by the High Court and the allegations of the private respondent are unwarranted and uncalled for. According to the writ petitioner, the private respondent had got enough opportunity to appear, and a notice and copies of the application were served upon him and the respondent no. 7 was well aware about all the proceedings and all the orders passed by this Court from time to time As the respondent no. 7 was asking lump-sum amount but since the writ petitioner was unable to oblige him, the frivolous and speculative application has been filed with a view to harass the writ petitioner. Learned lawyers of the respective parties argued at length. 6. The attention of this Court has been drawn to a decision reported in AIR 1971 Allahabad page 16 (Rahim Bux & Ors. vs. Mohammad Shafi). The question arose that demolition of the leased premises, even if pursuant to a notice under s. 263(1) U.P. Municipalities Act, is not a destruction of an irresistible force within the meaning of s. 108(e) of Transfer of Property Act and therefore, the lease does not become void under s. 108(e). It was contended that due to reconstruction of the building during the pendency of the case, it has become difficult to identify the portion of it on which the plaintiff shall be existed (?) and so the decree is not capable of execution. It was held 'that the landlords' were permitted to rebuild their building at their own risk which implied that the rights of the plaintiff would not be prejudiced thereby. It was held 'that the landlords' were permitted to rebuild their building at their own risk which implied that the rights of the plaintiff would not be prejudiced thereby. It would, therefore, be for the execution court to decide after taking such evidence as may be necessary, as to which portion of the premises consisted of the shop which was in the tenancy of the plaintiff and to restore possession to him only in respect of that portion. There is reference of a case reported in 1991 (1) CLJ page 382 (Smt. Monorama Pal & Anr v. Sri Mata Prasad Poddar & Ors). There is an observation as to the scope for injunction against a stranger who has obtained possession contrary to the provisions of law and in an appropriate case, the Court can pass necessary order of injunction restraining the stranger to possess the property. In the self-same volume of 1991(1) CLJ at page 434, the Division Bench of this Court in the case of (Smt. Usha Ghosh vs Rabindra Nath Das & Ors.) considered the scope of s. 47 of the Code of Civil Procedure regarding recovery of possession in execution in excess of decree coupled with police aid supplied by the Executive Magistrate rendering the process void. Such voidness is agitable in any Court not necessarily in executing Court. In 93 CWN at page 196 in the case of (Smt. Anjali Sen vs. State of West Bengal & Ors.), it was found that if possession has been taken illegally; what will be the duty of the Court. It was observed in the said case that a landlord who wanted to evict a tenant had taken such a step by force and to cover such illegal act approached the Court to obtain suitable orders. If the Court finds upon discovery that a person has taken law in his own hands, the Court does not become helpless to remove the misdeeds. If such things happen, the Court will pass necessary order restoring the possession. All these cases have been referred in support of the contention of the private respondent seeking for necessary reliefs by recalling the earlier order to enable the writ petitioner to obtain order from this Court for demolition of the tenanted portion with the police help. 7. If such things happen, the Court will pass necessary order restoring the possession. All these cases have been referred in support of the contention of the private respondent seeking for necessary reliefs by recalling the earlier order to enable the writ petitioner to obtain order from this Court for demolition of the tenanted portion with the police help. 7. It is, however, submitted on behalf of the writ petitioner that the steps taken in the main writ petition are just and bonafide and the private respondent cannot sustain the present petition under any circumstances and even if it is found that the tenancy has not been determined in accordance with law and the possession has been obtained wrongfully. The Court will be helpless as no longer the said tenanted property exists, and the private respondent who is a tenant cannot ask back the possession of the tenanted property. The attention of the Court has been drawn to AIR 1961 Cal. p. 70 (Mahadeo Prosad Shaw v. Calcutta Dying and Cleaning Company). In the said case, the scope of s. 56 of Contract Act has been considered regarding frustration of contract. In paragraph 17 it has been considered that s. 108(e) of Transfer of Property Act is a specific Section which deals with the substance of s. 56 of the Indian Contract Act and that Section says :- "If by fire, tempest, or flood or violence of any army or of a mob or other irresistible force any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease shall, at the option of the lessee be void etc." 8. It has been observed further in the said decision that a comparison of this Section of the Transfer of Property Act with s. 56 of the Indian Contract Act would show that the doctrine of frustration as enacted in s. 56 is substantially incorporated in s. 108(e) of the Transfer of Property Act. Section 56 refers to the stage when the contract becomes impossible or unlawful and there would be frustration within the meaning of that Act and the contract discharged thereby. Section 108(e) of the Transfer of Property Act does not use the words that the contract becomes impossible, but really gives certain instances of it. Section 56 refers to the stage when the contract becomes impossible or unlawful and there would be frustration within the meaning of that Act and the contract discharged thereby. Section 108(e) of the Transfer of Property Act does not use the words that the contract becomes impossible, but really gives certain instances of it. The word "impossible" in s. 56 Contract Act has been understood to mean "impracticable" or "impossible" of performance in the case between Satyabrata vs. Mugniram (AIR 1954 SC page 44). Section 108(e) of the Transfer of Property Act, on the other hand begins with certain instances where the lease becomes impossible of further performance and those instances are destructions by "fire, tempest, flood, violence of any army or of a, mob", after citing specific instances it continues to use a rather general clause "either irresistible force" Another decision is cited being reported in AIR 1984 Kerala page 181. The Division Bench of the Kerala High Court interpreting Ss. 105 and 106 of the Transfer of Property Act found that where the subject matter of a lease like the building is totally destroyed, the tenant is unable to squat on the ground where the building stood or construct a new building in its place or require the landlord to put up a new structure. A demised premises must have the subject matter and if it is destroyed, the lease comes to an end, and the question regarding due notice to quit under s. 106 is otiose in such a case. 9. Upon, perusal of all the materials on record and considering the facts of the case in depth and in details and looking at the provision of law as discussed above, this Court is of view that in the instant case, the writ petitioner has practically practised fraud upon this Court. It is found by this Court that the petitioner has deliberately suppressed the notice and proceedings before this Court, and there is no effective service upon the private respondent before the actual orders were made affecting the right of a tenant. While the writ petitioner admittedly filed a civil suit for eviction of the respondent/tenant, the petitioner has tried to make a short cut way to achieve his object. The affidavit-in-service tiled by the lawyer's clerk as to personal service is not found to be just and bona fide. While the writ petitioner admittedly filed a civil suit for eviction of the respondent/tenant, the petitioner has tried to make a short cut way to achieve his object. The affidavit-in-service tiled by the lawyer's clerk as to personal service is not found to be just and bona fide. It is not appreciated by this Court that the writ petitioner would try to make out a case of service by implication. Since the respondent is a tenant in respect of the portion of a property has been found to be contesting the civil suit ought to have been informed properly to enable him to appear before this Court for effective adjudication of the matter in dispute. 10. This Court has considered all the affidavits filed by the respective parties and looking at the materials on record; the conscience of the Court is shocked that the writ petitioner has tried to collude and conspire with the Corporation Authorities in order to evict a tenant but by not going to the Civil Court but by coming to the Writ Court and to achieve the object by making a frivolous and misconceived assertion that the tenanted portion of the property should be demolished. This Court specifically finds that no notice of the proceeding was either served by the writ petitioner or by the Municipal Corporation Authorities upon the private respondents at any relevant and material point of time. If the property under the lease is destroyed by irresistible force or by act of God, the question is otherwise but where a person practises fraud upon the Court and by taking the aid of the Court destroys a leasehold property, the affected person or the Court should not become helpless? 11. This Court is aware of the provisions of Ss. 18 and 18A of West Bengal Premises Tenancy Act. Section 18 thereof envisages inter alia as to how a tenant is entitled to restoration and compensation. 11. This Court is aware of the provisions of Ss. 18 and 18A of West Bengal Premises Tenancy Act. Section 18 thereof envisages inter alia as to how a tenant is entitled to restoration and compensation. Where the landlord obtains delivery of possession of any premises from the tenant in pursuance of a decree and the building or re-building or additions and alterations are not commenced or the premises are not occupied by the landlord or any person for whose benefit, the premises are held as the case may be, within six months from the date, of vacation of the premises by such tenant, or the premises having been so occupied by the landlord or any person for whose benefit the premises are held, the Controller may on the application of such tenant seek reliefs, or to pay him such compensation as may be deemed adequate. Similarly, s. 18A provides restoration of tenancy where decree for recovery of possession is passed under clause (f) of sub-s. (1) of s. 13, if the landlord refused to deliver possession the Controller can direct the landlord to put such tenant in possession of such a premises or such part thereof as the Controller may specify in his order within 14 (fourteen) days of the date of the order. It is thus evident that even in a case of a decree for eviction on the ground of building, re-building and development the right of the tenant is protected for obtaining back possession after the old building is destroyed and a new building is raised. The facts of the case are very much interesting in the instant case. Here the landlord has practised fraud upon the Court and with the aid of the Court and pursuant thereto obtained police force and allowed the Corporation Authorities to demolish a portion of the premises comprising the tenanted portion. If it is proved that the landlord has practised fraud, will he be allowed to reap the harvest and the tenant will be helpless and the Court will be a mute observer. The Writ Court is essentially a Court of equity. It grants reliefs to persons who come with clean hands and obtain equitable reliefs by obtaining powerful writ of the Superior Court in the manner as provided under the Constitution of India. The Writ Court is essentially a Court of equity. It grants reliefs to persons who come with clean hands and obtain equitable reliefs by obtaining powerful writ of the Superior Court in the manner as provided under the Constitution of India. If the Court who has issued the writ finds that there has been an abuse of the process of the law, the Writ Court should not feel hesitant to restore the possession of the property and direct the parties to get the status quo ante before passing the impugned order. The present petitioner tenant was admittedly in possession of a portion of the premises. This Court is convinced that the writ petitioner obtained collusive support from the Corporation Authorities and under the orders of the Court, there is demolition of the tenanted portion in occupation of the respondent/tenant by the Corporation Authorities with the help of police at the instance of the writ petitioner. There is no fault on the part of the respondent/tenant. 12. This Court has considered all the aspects of the matter and finds sufficient merit in the contention of the respondent/tenant to restore the tenanted portion and/or cause status qua ante in respect of the property prior to 7th June, 1991. 13. For the foregoing reasons, the petition of A.G. Sirdar supported by an affidavit sworn on 24th June, 1991 is allowed and the writ petitioner is directed to take all effective steps to restore the tenanted portion of the respondent/tenant and/or provide an alternative accommodation to the tenant in the said building by making addition, alteration, renovation, repair and/or reconstruction within a period of 6(six) months from the date of communication of the order. The writ petitioner, will obtain formal permission from the Corporation Authorities accordingly, and the said authorities will grant necessary permission within one month from the date of seeking such permission in order to enable the writ petitioner to raise similar structure as it was existing prior to obtaining of the order passed by this Court and in any way destroyed and/or demolished thereby and/or to raise such structure to provide alternative accommodation to the tenant. Liberty to mention. There will be payment of cost of 200 Gms. by the writ petitioner to the private respondent no. 7. Application of the private respondent allowed; he is restored possession and accommodation in the same premises. Liberty to mention. There will be payment of cost of 200 Gms. by the writ petitioner to the private respondent no. 7. Application of the private respondent allowed; he is restored possession and accommodation in the same premises. 200 gms cost to be paid by the petitioner to the private respondent.