1. This petition is for Issuance of a writ directing the respondents to deliver back the possession of the Shed No. 23 at Subhash Part Market, Khowai which was allotted to the petitioner by the Notified Area Authority (Nagar Panchayat).
2.1 have heard Mr. K.N. Bhattacharya, learned sr. counsel assisted by Mr. R Debnath, learned counsel for the petitioner. Also heard Mr. S. Deb, learned sr. counsel assisted by Mr. A. De, learned counsel for the respondent Nos. 1 and 2 and Mr. U.B. Sana, learned Government Advocate assisted by Mr. D.C. Nath, learned counsel for the respondent-State.
3. Petitioner's case is that after the allotment, he took possession of the aforesaid shed in January, 1986 as a tenant and an agreement of tenancy was executed between him and 4 others on the one side , and the Notified Area Authority on the other. The names of other 4 persons (respondent Nos. 6 to 8) were Included as Insisted upon by the aforesaid authority. The said agreement was executed and registered on 7.2.1986. The petitioner continued with the possession
all alone paying monthly rent to the authority. The petitioner is a fisherman and he was selling fishes from the aforesaid shed. The proforma-respondent Nos. 6, 7 and 8 got allotment of separate sheds in their names in the same market and they never occupied the disputed shed where the petitioner was dealing in fish. After the general election to the Tripura Legislative Assembly in 1993, Government was formed by the Left Front and rapid changes were brought about at different levels. Respondent No. 4 created pressure upon the petitioner through the leaders of the political party in power to evict him from the aforesaid shed No. 23. On 18.9.1993, the Chairman of the Notified Area Authority being in company of respondent No. 4 and others ordered the petitioner to vacate the shed. The Chairman accompanied by respondent No.4 and other persons also threatened the petitioner. Being apprehensive of danger to his life and property, the petitioner had to leave the shed on 18.9.1993 whereupon the respondent No. 4 occupied the same and since then in possession thereof. It is further alleged that the respondents were armed with different weapons of various kinds. After ouster of the petitioner, respondent No.5 also joined hands with respondent No. 4 and occupied the shed along with respondent No. 4.
4. The State as well as the Vice-Chairman of the Notified Area Authority filed separate affidavit controverting the allegations of conspiracy amongst the respondents for his ouster by threat. They also challenged the writ petition on the ground that no official order has been passed by the Notified Authority in the instant case and, as such, the dispute cannot be settled under Article 226. According to .them, the allegation is primarily directed against the Chairman in his private capacity and the remedy, if any, is in private law and not under Article 226 of the Constitution. Besides, they also took the plea of inordinate delay.
5. Other respondents did not appear although served and hence they go by default.
6. At the very first instance, Mr. Bhattacharjee, learned sr. counsel for the petitioner relied upon a common judgment passed by the learned Single Judge of this Court in Civil Rule No.92 of 94. Civil Rule No. 499 of 94 and Civil Rule No. 593 of 94 (Agartala Bench). Mr. Bhattacharjee submitted that the petitioners in the aforesaid Civil Rules were ousted from their allotted sheds in the same manner as has been done in the instant case and restoration of possession to the ousted allottees were ordered in the aforesaid cases.
7. The judgment relied upon by Mr. Bhattacharjee has been appended with the writ petition as Annexure-4. I have carefully gone through
the aforesaid judgment. The only difference in the factual matrix is that in the instant case, the agreement (Annexure-1) was executed by the petitioner and 4 other persons while in the cases under reference, the agreement was executed by the petitioners alone. The learned Single Judge in paragraph 6 of the judgment recorded the reasons for giving the reliefs sought for by the petitioner. It would be of immense assistance to quote herein below the relevant observation:-
'6... What is legal justification for such an action? Assuming that there was breach of conditions of agreement, as alleged by the respondents. The moot question is whether the Notified Area Authority has any right, without taking recourse to the ordinary course of law, for eviction, either under the special laws of the State, or under general law of Transfer of Property Act. can the authority take upon itself the role of an accuser as well as a Judge in its own cause? it is this question which is common to all these petitions. Even if this question of the Bond/Agreement executed by the petitioners entitle the respondent authority, to seek eviction of the allottees, or take possession of the allotted premises, who will decide the question of breach of conditions? Should it be left to the authority itself to decide the question of alleged breach of any condition and allow it to put its own lock? These are the questions of administrative i'airness. The action taken by any administrative authority must be informed with reasons and fairness. It cannot be an arbitrary and capricious action. There are laws governing eviction of allottees/licensees from public premises. These are drastic laws. The Tripura Public Premises (Eviction of Unauthorised Occupants) Act. 1982 defines 'public premises'. Section 4 thereof contemplates issuance of a Notice to show cause against order of eviction. The bare minimal that should have been done in the circumstances of the case, even in the absence of any statute as dictated by elementary rules of natural justice, has been omitted to be done by the respondents. Their action, either of putting of lock over and above the petitioners' thus interfering with their possession and enjoyment of the allotted premises, cannot stand the test of fairness. Apart from the blatant violation of Section 4 of the Tripura Public Premises (Eviction of unauthorised occupants) Act, 1983, it must be struck down as illegal. It is accordingly held to be illegal. Status quo ante as it obtained prior to the putting of lock of dispossession, must be restored.'
8. Mr. Bhattacharjee further submitted that the petitioner'stands in equal footing with the petitioners in the aforesaid cases and. therefore, the relief granted to the petitioners in that case may also be extended
in the instant case. Mr. S. Deb and Mr. U.B. Saha. learned counsel for the respondents raised vehement objection on the ground that the alleged role of the Chairperson if true, was in his individual capacity and not in discharge of his official capacity as the Chairperson and, therefore, no writ would lie against the Notified Authority.
9. The prime question to be answered in this petition is whether the alleged role played by the Chairperson in ousting the writ petitioner from the shed shorn of official colour would tantamount to an act for and on behalf of the Notified Area Authority.
10. It would appear from the pleadings as well as documents annexed that the petitioner's possession as tenant is not disputed. There is also no dispute that the petitioner was ousted in the month of September, 1993. Annexures-5, 6 and 7 show that the complaints lodged by the petitioner before the Notified Area Authority was not given any importance and no attempt was made either to enquire into the matter or to restore possession of the shed. It is important to note here that the respondent Nos. 6 to 8, though signatories to the agreement, have not filed any affidavit controverting the possession of the petitioner. In the affidavit filed on behalf of the Notified Area Authority and the Chairperson it is contended that the ouster of the petitioner cannot be adjudicated in this petition since there are other co-tenants who have not joined the petition. Besides the plea of limitation, the affidavit however does not contain any statement denying the allegations made against the Chairperson. This affidavit has been sworn in by the Vice-Chairperson and, therefore, omission on their part to deny the allegations made against the Chairperson would naturally lead to a presumption that the petitioner was ousted from the disputed shed at the behest of the Chairperson.
11. Apparently there is no official order or notice in the instant case for ouster of the writ petitioner. Whether presence of the Chairperson at the place of eviction and the role played by him in carrying out the threat and supervising the ouster would amount to an exercise in his individual capacity or on behalf of the Notified Area Authority. The Chairperson is not an ordinary citizen. He is first citizen and wherever he may be he carries with him the majesty and glamour of the official status as Chairperson. The ouster of the writ petitioner in his presence and under his supervision, even, though, without an order in writing, would, mean an act for and on behalf of the Notified Area Authority. Petitioner was an ordinary tenant of the Authority whom the Chairperson represents and in all fairness it was his duty to protect the interest of the petitioner in the disputed shed. The Chairperson obviously failed to do his duty. The active role played
by him was in a matter pertaining to the affairs of the Notified Authority. Therefore, for all purposes his presence and the role played by him was indicative or the fact that the eviction was undertaken for and on behalf of the Notified Authority. Mr. Saha argued that there was no written order and, as such, the action taken by the Chairperson in ousting the writ petitioner was not an act for and on behalf of the Notified Authority. But this argument is bereft of logic since the action of the Chairperson was not only against law, but also against the known concept of fair play. No action shall be initiated or undertaken by a person in authority without legal sanction. Fairness and natural justice require such a person to act only in aid of justice. I think the inevitable conclusion should be that when the Chairperson himself takes part in evicting tenant from a Municipal Shed duly allotted to him without lawful authority, such act would be nothing short of an act undertaken and accomplished for and on behalf of the Notified Authority. The decision, however, would have been altogether different if the matter in controversy was not relatable to the affairs of the Notified Authority. Therefore, writ would lie.
12. Mr. Bhattacharejee, learned counsel for the writ petitioner referred to a decision of this Court reported in AIR 2000 Gauhati 35 in order to show that the court decided that alternative remedy would not operate as a bar where serious consequence flows from the impugned order passed in violation of the principles of natural justice. Mr. Bhattacharjee also relied upon a decision of the Supreme Court report in AIR 1969 SC to drive home the above point. In addition, he has also referred to S.P. Gupta's case (AIR 1982 SC 149) in order to show that the technalities would not be a bar in rendering substantial justice. According to Mr. Bhattacharjee, law of maintainability of a writ petition has marched ahead of traditional concept, and neither delay nor any technical bar for that matter would stand on the way of justice in an appropriate case.
13. Mr. Deb, learned counsel for the respondents referred to the decisions in AIR 1985 SC 167 and AIR 2000 2573 and argued that in the domain of contract dispute about the terms of the contract have to be settled by the ordinary principles of the law of contract. It has also been argued relying on the decision of the Supreme Court in AIR 1957 SC 529 that a Writ of Mandamus is not to be issued against a private individual. Further reference has been made to the decision in (1999) 4 SCC 43 in order to show that the case of the writ petitioner cannot be treated as one of those cases which call for exercise of discretionary power for violation of the right to livelihood under Article 21. Besides, reliance has also been placed on a number of decisions of the Supreme Court on the question of delay since the
petitioner came late to Court, that is, after five years from the date of alleged dispossession.
14. After due consideration of the submission of the learned counsel and the decisions referred to, this court cannot reconcile with the idea of eviction of a petty shop-keep from an allotted shed at the behest of the Chairperson without authority of law. The State in its affidavit has not taken any exception to the unlawful act of the Chairperson in ousting this poor fisherman. Rather serious and determined attempts have been made by the State to justify the dismissal of the writ petition. The stand taken by the State is not in harmony with concept of 'Rule of law'. Rules of natural justice are not engraved on tablets of stone. A person in authority has to conduct himself with utmost care. He must behave both in official or individual capacity only in accordance with the principles of law. Fairness shall be apparently visible in all his actions. Here is a case where the Chairperson by his unauthorised role in an affair connected with the authority has not only dishonored the status and position held by him, but also derogated the authority of the Institution which he headed. Under no circumstances this court can endorse such unlawful act done in blatant violation of the law and the principles of natural Justice. If we go through the Judgment of my Learned Brother Hon'ble Mr. Justice V.D, Gyani in Civil Rules No, 593/1994, 449/ 1994, 92/1994, it would be evident that the action under review calls for serious condemnation.
15. In a situation like this, the delay in filing a writ petition will have to be Ignored. Besides, the plea that the writ petitioner was not the only allottee but was one of the allottees will also not stand on the way as the dispute, if any, between the writ petitioner and the proforma respondents is a matter to be thrashed out by them. Silence maintained by respondents No. 6 to 8 in this petition indicate that they are not in a mood to meddle with. Therefore, I am unable to decipher any reason to refuse status quo ante which prevailed prior to the ouster of the writ petitioner.
16. In the result, the writ petition is allowed. It is ordered that the
possession of the shed be restored to the petitioner within a month
and the same shall not be interfered with except in due course of
law. .
17. Considering the background of the case, the respondent No. 1 is also directed to pay cost of Rs. 10,000 to the petitioner within a month.