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2004 DIGILAW 238 (ORI)

Hotel Repose Pvt. Ltd. v. State of Orissa

2004-05-12

A.K.PATNAIK, M.M.DAS

body2004
JUDGMENT A. K. PATNAIK, J. — The case of the petitioners in this writ petition is that the petitioner No.1 company took lease of a property situated at Sea Beach at Puri for the purpose of start¬ing a hotel. They availed a loan of Rs. 8,15,000/- from the State Bank of India, Puri and converted the said property to a comfort¬able hotel. Opposite party No. 4 was the guarantor for the said loan. Since the petitioner No. 1 company defaulted in repaying the loan, the State Bank of India filed a suit for recovery of the outstanding amount in the Loan Account.But subsequently, the claim of the Bank was settled and an application was filed for withdrawal of the suit. When the Managing Director of the peti¬tioner No. 1 company was away to Calcutta, the opposite party No.4 forcibly took possession of the hotel and assumed management of the hotel from 15.3.2001. The petitioner lodged a complaint in the Sea Beach Police Station against opposite party No. 4 but the local police did not initiate any action against opposite party No. 4 as he is well connected in the corridors of power and also yields considerable muscle power through his band of anti-social henchmen. The petitioners then moved the Chief Secretary, Government of Orissa who directed the Collector, Puri to initiate action as per law. Pursuant to the direction of the Chief Secre¬tary. Misc. Case No. 13 of 2001 was registered before the Collec¬tor, Puri and yet no action was taken against the opposite party No. 4. The petitioner No. 2 then moved this Court in writ peti¬tion O.J.C. No. 12596 of 2001 praying for a direction to the authorities to protect his rights and livelihood by restoring his properties to him. On 10.10.2001 the said O.J.C. No. 12596 of 2001 was disposed of by this Court directing the Collector, Puri to dispose of the said Misc. Case No. 13 of 2001 within a period of 10 days from the date of receipt of the said order passed by this Court. On 27.10.2001 the Collector, Puri disposed of the Misc. On 10.10.2001 the said O.J.C. No. 12596 of 2001 was disposed of by this Court directing the Collector, Puri to dispose of the said Misc. Case No. 13 of 2001 within a period of 10 days from the date of receipt of the said order passed by this Court. On 27.10.2001 the Collector, Puri disposed of the Misc. Case observing that the opposite party No. 4 has filed O.S. No. 606 of 2001 in the Court of the learned Civil Judge (Junior Division), Puri claiming that under an agreement dated 5.11.1987 signed by the Managing Director of petitioner No. 1 company and opposite party No. 4, the hotel was to be in possession and management of the petitioner for the first ten years after which the opposite party No.4 was to take over the management of the hotel without intervention of the Court. By the said order dated 27.10.2001, the Collector, Puri held that perhaps he is not competent to examine the dispute which has been referred to a Civil Suit and only requested the Superintendent of Police, Puri, to investigate into the F.I.R. lodged by the petitioners under the appropriate provision of law. The petitioner’s case in the writ petition is that the Managing Director of petitioner No. 1 company has not signed the agreement dated 5.11.1987 and the plea put forth by opposite party No. 4 in the suit as well as the misc. case before the Collector, Puri was totally false and they have prayed for quashing the said order dated 27.10.2001 passed by the Collector, Puri, in Misc. Case No. 13 of 2001 as well as the plaint filed by opposite party No. 4 in the Court of the Civil Judge (Junior Division), Puri in O.S. No. 606 of 2001. The petitioners have also prayed for a direction to the State of Orissa represented by the Chief Secretary, the Collector, Puri and the Superintendent of Police, Puri to restore possession of the hotel to the petitioners forthwith. Along with the writ petition the petitioners have also filed Misc. Case No. 687 of 2003 praying for a direction to the opposite parties to immedi¬ately arrest opposite party No. 4 and restore the petitioner’s properties forthwith. 2. On 19.6.2003, the Court passed orders in Misc. Along with the writ petition the petitioners have also filed Misc. Case No. 687 of 2003 praying for a direction to the opposite parties to immedi¬ately arrest opposite party No. 4 and restore the petitioner’s properties forthwith. 2. On 19.6.2003, the Court passed orders in Misc. Case No. 687 of 2003 requesting the learned Additional Government Advocate to apprise the Court as to what action has been taken by the police on the F.I.R. of the petitioners and further directed that an affidavit be filed by the opposite party No.4 as to how he entered into the premises of M/s. Hotel Repose Private Limit¬ed. Pursuant to the said order, a counter-affidavit has been filed on 8.8.2003 by the Inspector-in-charge, Sea Beach Police Station on behalf of opposite party No. 3 in which it is, inter alia, stated that on 27.2.2002 a report was received from the petitioner alleging forcible trespass and removal of properties by opposite party No. 4 and accordingly Sea Beach P.S. Case No. 21 dated 27.2.2002 under section 448/379/I.P.C. was registered and investigation is going on. It is however stated in the said counter-affidavit that the case is subjudice in the Court of the Civil Judge (Junior Division), Puri and the writ petition is premature and is liable to be dismissed. 3. Opposite party No. 4 has also filed a counter-affidavit in Misc. Case No. 687 of 2003 on 16.5.2003 stating therein inter alia that on 5.11.1987 the opposite party No. 4, the petitioner No. 1 and Shri P. C. Chaterjee, Director, Indian Tea Provisions Ltd. which owned the aforesaid property entered into a tripartite agreement and the said agreement provided that the petitioner No. 2 was to remain in charge of the hotel business for a period of first ten years commencing from 4th of August, 1987 after which the opposite party No. 4 was to remain in charge of the manage¬ment of the hotel for a period of ten years. The opposite party No. 4 has further stated in the said counter-affidavit that notwithstanding the said provisions in the agreement dated 5.11.1987, the petitioner No. 1 hung on to the management of the hotel even after the expiry of the period of first ten years and left for Calcutta in March, 2001 leaving the hotel business in disarray and it is only then that the opposite party No. 4 took over the charge of the management of the hotel on 15.3.2001, i.e. three years after the due date. Thereafter, the petitioners started making representations from Calcutta to various authori¬ties and also filed an F.I.R. at the local Sea Beach Police Station. Apprehending dispossession by the petitioners,the oppo¬site party No. 4 has filed O.S.No. 606 of 2001 in the Court of the learned Civil Judge (Junior Division), Puri praying for permanent and mandatory injunction against the petitioners re¬straining them from interfering in the peaceful possession of the suit premises and the hotel business and in the said suit the petitioner No. 1 has appeared and filed his written-statement on 19.10.2001. The opposite party No. 4 has also filed an affidavit on 10.7.2003 in O.J.C. No. 15699 of 2001 reiterating the afore¬said facts. 4. When the matter was listed on 21.8.2003, the Court called upon Mr. Goutam Mukherji, learned counsel for the peti¬tioners, to cite any authority for the proposition that the High Court in an appropriate case can restore possession to a private person whose possession has been disturbed by another private person. On 23.9.2003 Mr. Mukherji produced before the Court a compact disc regarding the conduct of the opposite party No. 4 and the personnel of the Sea Beach Police Station, Puri and the Court passed orders asking the petitioners to file an affidavit indicating the contents of the compact disc and granted leave to opposite party No. 4 to file a counter-affidavit in reply to the said affidavit. Pursuant to the said order passed on 23.9.2003, an affidavit has been filed by the Managing Director of petition¬er No. 1 company stating therein that the compact disc contains a programme recorded and telecast by a television channel in Cal¬cutta and the programme is based on a report of the journalist who during his visit to Puri learnt that the opposite party No. 4 known as “TIKI PUA” controls the entire District Administration, shops, markets, hotel, Labour Office, Income Tax and Sales Tax Departments and with the help of such power wielded by him has dispossessed the true owners of the hotel including the petition¬ers. The opposite party No. 4 has filed an affidavit on 18.12.2003 praying that a copy of the aid compact disc on the basis of which the petitioners have filed the affidavit on 26.9.2003 be furnished to him. 5. Mr. Goutam Mukherji, learned counsel for the peti¬tioners submitted that no one can be allowed to use brute force and take possession of the property with the help of muscle power and the High Court in exercise of its jurisdiction under Article 226 of the Constitution should forthwith direct the arrest of the opposite party No. 4 who with the help of local goondas has taken over possession and management of the hotel of the petitioners in March, 2001 while the Managing Director of the petitioner No. 1 company was away to Calcutta and should also direct restoration of the said hotel to the petitioner. He further submitted that the compact disc filed in Court is ample evidence of the fact that opposite party No. 4 has been indulging in such activities of taking over control of different hotels in the sea beach at Puri with the active connivance of the local police and the District Administration. 6. Mr. Sanjit Mohanty, learned counsel for opposite party No. 4, on the other hand, submitted that the dispute between the petitioner and opposite party No. 4 is a private dispute and is pending before the Civil Judge (Junior Division), Puri in O.S. No. 606 of 2001. He cited the decisions of the Supreme Court in G. Bassi Reddy v. International Crops Research Institute and another (2003) 4 SCC 225 , and in Dwarka Prasad Agarwal (D) by L.Rs. He cited the decisions of the Supreme Court in G. Bassi Reddy v. International Crops Research Institute and another (2003) 4 SCC 225 , and in Dwarka Prasad Agarwal (D) by L.Rs. and another v. B. D. Agarwal and others, AIR 2003 SC 2686 , in support of his submission that a writ petition under Article 226 of the Constitution is not maintainable against a private person for resolution of a private law dispute. 7. In G. Bassi Reddy v. International Crops Research Institute and another (supra), the Supreme Court while referring to the language of Article 226 of the Constitution has held that the power of the High Court to issue a writ to any person can only mean the power to issue such a write to any person to whom according to well established principles a writ lay. In the language of the Supreme Court : “It is true that a writ under Article 226 also lies against a ‘person’ for “any other purpose”. The power of the High Court to issue such a writ to “any person” can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words “and for any other purpose” must mean “for any other purpose for which any of the writs mentioned would, according to well established principles issue”. In Dwarka Prasad Agarwal (D) by L.Rs. and another v. B. D. Agar¬wal and others (supra), the Supreme Court further held that a writ petition is filed as public law remedy and the remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute. The relevant portion of the said judgment of the Supreme Court is quoted herein below : “A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Art. 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Art. 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. It is also well-settled that a writ remedy is not available for resolution of a property or a title dispute.......” 8. In the present, case, we find that the case of the opposite party No. 4 is that under the agreement dated 5.11.1987, the petitioners were to manage the hotel for a period of ten years expiring in 1997 and thereafter the opposite party No. 4 was to manage the said hotel for a period of ten years and it is by virtue of the said agreement that the opposite party No. 4 has taken possession and assumed management of the property. The case of the petitioners, on the other hand, is that the Managing Director of the petitioner No. 1 company has not signed the agreement dated 5.11.1987 and the agreement dated 5.11.1987 is a forged and a fabricated document. This dispute between the peti¬tioners and opposite party No. 4 is presently before the learned Civil Judge (Junior Division), Puri in O.S. No. 606 of 2001 and we do not think that in exercise of our powers under Article 226 of the Constitution we can resolve this private law dispute between the parties and direct restoration of possession of the hotel to the petitioners in view of the aforesaid law laid down by the Supreme Court in G. Bassi Reddy v. International Crops Re¬search Institute and another (supra) and Dwarka Prasad Agarwal (D) by L.Rs. and another v. B. D. Agarwal and other (supra). Mr. Mukherji has not cited any decision before us to show that the High Court in exercise of its powers under Article 226 of the Constitution can quash a plaint filed in a Civil Court and direct restoration of possession of a private property taken over by another private person in purported exercise of his rights under an alleged agreement. 9. Mukherji has not cited any decision before us to show that the High Court in exercise of its powers under Article 226 of the Constitution can quash a plaint filed in a Civil Court and direct restoration of possession of a private property taken over by another private person in purported exercise of his rights under an alleged agreement. 9. But this is not to say that where a petition is filed under Article 226 of the Constitution alleging that the police has neglected to do its duties on an F.I.R. alleging commission of offences by a person with the help of local goondas, the High Court cannot issue any mandamus or other writ directing the police to do its duties under the law. The Inspector-in-charge, Sea Beach Police Station, Puri has stated in the counter-affida¬vit filed on behalf of opposite party No. 3 that a report was re¬ceived on 27.2.2002 through post from the petitioners alleging forcible trespass and removal of properties by the opposite party No. 4 and accordingly Sea Beach P.S. Case No. 21 cited 27.2.2002 under Section 448/379, I.P.C. was registered and investigation is going on. From the rest averments in the counter-affidavit filed on behalf of opposite party No. 3 it appears that the police has not taken prompt action to investigate into the said offences stating that the dispute between the petitioners and opposite party No. 4 is pending in the Court of the Civil Judge (Junior Division), Puri. Mere pendency of a dispute between the parties in a Civil Court is no ground for the police not to investigate into an alleged offence by a person in accordance with their duties under law. Serious allegations have been made alleging that the opposite party No. 4 has taken over the possession and the management of their hotel with the active connivance of the local police and District Administration. The petitioners have also produced a compact disc before this Court containing a report of journalist that the opposite party No. 4 has been indulging in similar activities of taking control over various hotels in Puri with the help of the local police and the District Administration. The petitioners have also produced a compact disc before this Court containing a report of journalist that the opposite party No. 4 has been indulging in similar activities of taking control over various hotels in Puri with the help of the local police and the District Administration. In our view, the Superintendent of Police, Puri, the opposite party No. 3, should personally investigate into the offences under Section 448/379 I.P.C. alleged to have been com¬mitted by the opposite party No. 4 in the F.I.R. of the petition¬ers. Sub-sec. (3) of Section 154 of the Code of Criminal Proce¬dure, 1973 provides that in certain circumstances the Superin¬tendent of Police may also investigate the case himself in the manner provided by the Code and while carrying out such investi¬gation, can exercise all the powers of an Officer-in-charge of the Police Station in relation to the offence. Since allegations have also been made that the opposite party No. 4 wields control over the local police and the District Administration of Puri District, in our view, the investigation should be monitored by this Court till the same is completed. 10. In the result, the writ petition and the misc. case are disposed of with the direction that the Superintendent of Police, Puri, opposite party No. 3 will forthwith investigate into the offences alleged by the petitioners in their First Information Report received by the Inspector-in-charge, Sea Beach Police Station, Puri on 27.2.2002 and submit a report to this Court within three months from today. The compact disc filed by the petitioners in this Court on the alleged activities of the oppo¬site party No. 4 will be delivered to Mr. Debasis Das,learned Additional Government Advocate, who will send the same to the Superintendent of Police, Puri for the purpose of the aforesaid investigation. The status report regarding the investigation will be filed in this Court along with an affidavit once every month. Debasis Das,learned Additional Government Advocate, who will send the same to the Superintendent of Police, Puri for the purpose of the aforesaid investigation. The status report regarding the investigation will be filed in this Court along with an affidavit once every month. We make it clear that we have not expressed any opinion on the merits of the case of the petitioners and the opposite party No. 4 regarding their respective claim to the hotel property and it is open to the petitioners to file a suit for restoration of possession of the said property against the opposite party No. 4, if he is so advised, and if such a suit is filed, the same will be decided by the Civil Court on its own merits keeping in mind the provisions of Section 14 of the Limitation Act, 1963. In the facts and circumstances of the case, parties shall bear their own costs. M. M. DAS, J. I agree. Petition and Misc. case disposed of.