Case: Satyabrata Biswas Vs. Kalyan Kumar Kisku

2. The short facts leading to this appeal are as under : The premises in dispute is a Church property situate at No. 16 Sudder Street, Calcutta including theThe first respondent, Kalyan Kumar Kisku, filed a Suit bearing No. 328 of 1988 before the High Court of Calcutta, for declaration of title, in his capacity as Secretary of Durgapur Diocese. It was claimed in the said suit that the Durgapur Diocese consisted of three rooms and inter alia it was claimed that the possession of Durgapur Diocese may not be disturbed. The suit was directed against the Church of North India and the Durgapur Diocese. 3. The prayers in the said suit are as follows : ``(a) A decree be passed declaring that the premises being No. 16, Sudder Street,use and garages to which the Durgapur Diocese is in possession and/or occupation, belong to the said Diocese of Durgapur to the exclusion of Diocese of Calcutta and the Durgapur Diocese alone has the executive right and title to use and enjoy the same ; (b) A decree be passed declaring that until the properties of the Durgapur Diocese are demarcated and/or transferred and/or handed over to the Diocese of Durgapur in terms of the resolution of the CNI Synod from the Calcutta Diocese, the power of attorney executed by the Trustees of the Calcutta Diocese Trust Association in favour of the Durgapur Diocese be restored and the Durgapur Diocese will be legally entitled to collect all rents, issues and profits of the assets belonging to the said Diocese of Durgapur ; (c) A decree be passed declaring that the CNI Synodhave no authority to extend the date of holding the Episcopal Election and in the event of any delay in holding such election the said CNI Synod Officebearers have no right and/or authority to appoint Moderator Commissary and/or Episcopal Commissary and the Executive Committee as well as the Diocesan Council of Durgapur cannot be dissolved and/or superseded and/or disturbed and the said council as well as Executive Committee would be allowed to function to its full tenure, i.e. 8.9.1989 ; (d) An order be passed granting leave under Order (i) Rule 8 of the Civil Procedure Code ; (e) Permanent injunction be granted restraining the defendants from interfering with the functions of the Diocesan Council as well as the Executive Committee of the Durgapur Diocese till the full tenure is over, i.e. 8.9.1989 ; (f) Permanent injunction be granted restraining the defendants and their servants and agents from interfering with the peaceful possession and use and occupation of the premises being No. 16, Sudder Street,use and garages by the Durgapur Diocese ; (g) Permanent injunction be granted restraining the defendants and their servants and agents from collecting rent, issues and/or profits of the properties belonging to the Durgapur Diocese in terms of the CNI Synod resolution and by operation of the power of attorney executed and/or to be executed by the Calcutta Diocesan Trust Association until the properties belonging to the Diocese of Durgapur are handed over and/or transferred to the Durgapur Diocese by the Calcutta Diocesan Trust Association (Private); (h) Permanent injunction be granted restraining the defendants and particularly the CNI Synodin the matter of Episcopal Election and further restraining the defendants from appointing Moderatory Commissionary and/or Episcopal Commissionary over the Durgapur Diocese ; (i)Injunction ; (j) Receiver ; (k) Costs ; (l) Such other relief or reliefs. 4. Pending this suit an interlocutory application was filed and an order dated 20th May, 1988 was passed directing the maintenance of status quo in respect of running of Durgapur Diocese till further orders. 5. On 1st June, 1988 this order was modified stating that the order dated 20th May, 1988 will not stand in the way of retirement of the Bishop which was due on 4th June, 1988 or the appointment of the Commissary by the Moderator of the Church of Nottingham. The defendants were directed to appoint a new Bishop within 5 weeks from the date of the said order. We may at this juncture point out that these two orders are not material for our purposes. However, what is important is the order dated 15th September, 1988. That order is extracted in full : ``This application was stand adjourned for one week from date.ly to be filed in the meantime. So far as the fixed properties concerned there would be an order of status quo as oftill the disposal of the application. There would also be an order not to dissolve the committee in the meantime. It is recorded that Mr. Bishop Ghose has already taken over the charge. All the parties are to act on a signed copy of the minutes of this order. 6. From the above it is seen that in relation to the properties an order of status quo as of today, (that is, 15th September, 1988) had been passed by the court. It is complained that there is a violation of these three orders by the six respondents, Satyabrata, Biswas, Rev. Bilash Chandra Das, Salil Biswas, Sushil Sharma, Rt. Riv. Dinesh Chandra Gorai and Rt. Rev. John E. Ghosh. The contempt was for: (1) putting a padlock to the main entrance of the premises on 3.7.93 ; (2) disconnecting water supply, (3) obstructing sewerage line; and (4) preventing the appellants from getting the rooms repaired. 7. By an order dated 20th of July, 1993 the court directed to make an inventory in the rooms lying in the first floor of the suit premises and also to find if there be any padlock. The Special Officer was appointed under that order. He was permitted to break open the padlock and put his own padlock after the inventory was made. 8. On 4.8.93 the Special Officer was directed to continue the inquiry and complete the same as per order dated 26th July, 1993. The keys to the main door were to remain with theTaltola Police Station. 9. On 16.8.93 the said order dated 26th July, 1993 was modified to the effect that the Receiver would make the inventory of the articles in terms of the earlier order, but would not put the main entrance gate under lock and key. A modification to the said order dated 16.8.93 was sought to the effect that the Special Officer should allow representatives of each of the parties and should not allow anybody from the occupier at the time of making inventory. This modification was refused. Until this, Sumani Builders (respondent No. 2 herein) was not a party to any of the proceedings nor did it move an application to implead itself. Yet an oral prayer made by Somani Builders was allowed on 20.8.93 inter alia in the following terms : ``It is submitted by Mr. Ghosh that even after the inventory is complete the Receiver has put padlock. Mr. Bhattacharjee, Learned Receiver is present. It is submitted by the Receiver that the inventory is complete. Receiver is directed to remove the padlock, if any, put by him by tomorrow. 10. Aggrieved by these proceedings an appeal came to be preferred by the appellants. It was contended by the learned counsel appearing on behalf of the appellants that the said A. K. Ghosh was neither a tenant nor did he have the competence or authority to let out any portion of the premises in question. Therefore, the said A. K. Ghosh did not have authority to be there as a tenant. It was further urged that the creation of tenancy was an afterthought and no order should have been passed in favour of the said Somani Builders who had intervened in this proceeding. On this plea the court inter alia observed as follows : ``Whether or not the Somani Builders Pvt. Ltd. is a lawful subtenant cannot be decided in this proceeding. It is for the landlord to initiate appropriate proceedings for their ejectment. But at this stage, the question is whether Somani Builders Pvt. Ltd. is in occupation or not. On the facts and in the circumstances of this case, we are prima facie satisfied that the company was in occupation of the disputed premises. Even a trespasser can be evicted only by due process of law. 11. Thereafter it proceeded to appoint Joint Receivers with a direction to obtain the keys from theTaltola Police Station. They would make an inventory of the rooms stated to have been occupied by Somani Builders Pvt. Ltd. opening the padlock which was fixed by the Special Officer. After making the inventory the Joint Receivers were directed to take possession of the said premises. They were also directed to allow Somani Builders to occupy the said premises for the purpose of carrying on business in the usual course. The occupation charges would be paid by the Somani Builders to the Joint Receivers without prejudice to the rights and contentions of the parties. 12. Under these circumstances the present civil appeal by special leave has come to be preferred.

Reasoning:
14. First of all, he had no authority to grant a tenancy. Even otherwise, since status quo order had been passed by the Court on 15th September, 1988 the creation ofunder the agreement dated 10.5.93 would not confer Somani Builders with any right whatever. In contempt jurisdiction an utter stranger to the proceedings cannot be put in possession, while the sole question was whether the parties had violated the order dated 15th September, 1988. Therefore, the order is liable to be set aside.Apart from the fact whether A. K. Ghosh had a legal authority to sublease or not it was not open to him to grant ain violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such aunder the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : `Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a subtenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with inpunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right ofis recognised, how is status quo as of 15.9.1988 maintained ? Hence, the grant ofis contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal. 30. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 (except that part relating to appointment of Special Officer, 4.8.93, 6.8.93, 11.8.93, 16.8.1993 and 20.8.1993 as well). 31. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession.