Shanti Devi vs State Of Sikkim & Anr

3. The appellant and her husband, Ram Nath Prasad, were running a grocery-cum-stationery shop in a rented premises owned by the respondent No.2 herein, at Ranipool in East Sikkim. The Trade Licence for running the aforesaid business was in the name of M/s Ram Nath Prasad.

4. Ram Nath Prasad died on 17.3.2004 leaving his widow, Shanti Devi, the appellant herein, to run the business from the said rented premises. The appellant continued to run the business in the name of M/s Shanti Enterprises and on 1.7.2004 she applied to the concerned authorities for issuance of a fresh Trade Licence in the name of her firm M/s Shanti Enterprises. For the sake of abundant caution, on 9.7.2004 she also filed an application with an alternative prayer for changing the subsisting Trade Licence from the name of M/s Ram Nath Prasad to M/s Shanti Enterprises.

5. It may be mentioned that prior to her said application the respondent No.2-landlord had on 19.5.2004 written to the respondent No.1 indicating that Ram Nath Prasad had expired and that the existing Trade Licence for the aforesaid business should not be renewed and no fresh Trade Licence should be issued in the name of the sons of Ram Nath Prasad without a No Objection Certificate from him, in his capacity as the owner of the said premises.

6. On 23.8.2004, the concerned authorities informed the appellant that the Trade Licence issued in the name of M/s Ram Nath Prasad was to be treated as cancelled under Rule 12(m) of the Sikkim Trade Licence and Misc. Provisions Rules, 1985, with immediate effect. The said direction was given despite the fact that the appellants application for transferring the Trade Licence from the name of M/s Ram Nath Prasad to M/s Shanti Enterprises, was pending decision along with the appellants application for issuance of a fresh licence in the name of M/s Shanti Enterprises.

7. Aggrieved by the said order dated 23.8.2004 cancelling the Trade Licence issued in the name of M/s Ram Nath Prasad, the appellant filed a writ petition, being Writ Petition (C) No.32 of 2004, in the Sikkim High Court on the ground that the impugned order was illegal, having been passed in violation of Articles 21, 14, 19 and 300 (A) of the Constitution of India. Besides praying for the quashing of the said order dated 23.8.2004 the appellant also prayed for certain other reliefs, including a declaration that the provisions of Rule 12(m) of the Sikkim Trade Licence and Misc. Provisions Rules, 1985, were arbitrary and in violation of Articles 14 and 21 of the Constitution and were liable to be struck down.

8. The said writ petition was disposed of at the very initial stage on 15.9.2004 with liberty to the appellant or any of her representatives to meet the Joint Secretary, Licence Section, Urban Development and Housing Department of the State Government, for guidance in the matter of compliance with whatever requirements that were required to be complied with. The concerned authority was directed to dispose of the representation of the appellant within one month from the date of intimation of the order passed by the High Court.

9. Pursuant to the above observations made by the High Court, the appellant applied to the concerned authority on 1.7.2004 and by its letter dated 17.9.2004 the said authority directed the appellant to submit necessary documents for grant of a separate Trade Licence. One of the documents which was required to be submitted was a No Objection Certificate from the landlord/respondent No.2. Since, according to the appellant the respondent No.2 was bent upon evicting her from the said premises, she informed the respondent-authority, that the respondent No.2 was not willing to provide the appellant with such No Objection Certificate and accordingly prayed that she be exempted from submitting the same. Despite the fact that the appellant had complied with all the other requirements and had prayed for exemption from submitting the No Objection Certificate, the respondent authority by its letter dated 14.10.2004 informed the appellant that her request for grant of a Trade Licence could not be considered in the absence of a No Objection Certificate from the house owner. Instead, she was directed to close down her business with effect from 15.10.2004.

10. Since it was impossible to obtain a No Objection Certificate from the respondent No.2/landlord who was bent upon evicting her from the premises in question, the appellant filed a fresh writ petition, being Writ Petition No.24/2006, before the Sikkim High Court, inter alia, renewing her prayer for transfer of the Trade Licence issued in favour of M/s Ram Nath Prasad to the appellant and also for striking down the requirements of obtaining a No Objection Certificate from the house-owner together with the provisions of Rule 12(m) of the Sikkim Trade Licence and Misc. Provisions Rules, 1985, as being arbitrary and illegal.

12. The appellant, who had filed the writ petition, inter alia, for a direction to the concerned authorities either to transfer the Trade Licence in the name of M/s Ram Nath Prasad to M/s Shanti Enterprises or in the alternative for issuance of a fresh Trade Licence in her favour was not only made to suffer an order of dismissal of her writ petition with costs assessed at Rupees one lakh, but was also handed a mandatory order of eviction directing her to vacate the premises in question within a week from the date of the order.

14. What is even more surprising and of some concern is the alacrity and despatch with which orders were passed on the contempt petition filed by the respondent No.2 on the very next day after the expiry of the stipulated period indicated in the mandatory directions given by the learned Judges directing the appellant to vacate the premises in question within one week from the date of the order. The facts, as revealed in I.A.No.1 of 2006, filed by the appellant in the Special Leave Petition, reveals a sordid tale of how the judicial process was used to perpetrate an illegality which had its origin in the order of the learned Judges disposing of the writ petition filed by the appellant.

15. It may be noted that the order disposing of the writ petition filed by the appellant was passed on 26.6.2006 and the period of one week given by the learned Judges to the appellant to vacate the tenanted premises lapsed on 3.7.2006. The contempt petition was filed by the respondent No.2 on 4.7.2006 and was immediately taken up for hearing on the same day on which it was filed and the appellant was directed to appear before the Court on the very next day to reply to the allegations made by the respondent No.2 in the contempt petition. In addition to the above direction to the appellant, a further direction was given to the Officer in-Charge of Ranipool Police Station, to produce the appellant before the Court on 5.7.2006. The Registry was also directed to furnish a copy of the order along with the contempt petition to the Officer in-Charge, Ranipool Police Station, to enable him to hand over the same to the appellant with liberty to her to file her reply to the contempt application on 5.7.2006 itself. It will, therefore, be evident from the above that while the appellant was given time till 3.7.2006 to vacate the tenanted premises, on the next day orders were passed for the appellant to appear before the Court and also to file her reply to the allegations made in the contempt petition. The dates speak of the haste with which the orders were passed in the contempt petition which had the effect of ensuring that the respondent No.2 obtained possession of the shop-room before the appellant could take any steps before the higher forum against the said orders.

What follows thereafter is nothing short of authoritarianism and complete disregard of the principles of fair play in judicial proceedings. A non-bailable warrant of arrest was issued against the appellant on 5.7.2006 with a direction on the Chief Judicial Magistrate (East and North) to ensure production of the appellant before the Court on 07.07.2006 at 10.30 a.m. Directions were also given to the Police Department to execute the order of the Court and a copy thereof was sent to the Director General of Police as well as to the Superintendent of Police, East District, together with the Officer in- Charge concerned. The District Collector/ District Magistrate (East District), was appointed as Receiver of the articles lying in the appellants tenanted premises with authority not only to the District Magistrate but also to the respondent No.2 to break-open the lock(s), if any found in the said premises and to dispose of all the articles by public auction. The District Magistrate was also directed, after breaking open the locks to hand over the possession of the premises in question to the respondent No.2.

13. We cannot help but observe that not only was the said order passed without jurisdiction, but the same was also arbitrary and injudicious to say the least. If the learned Judges were of the view that the writ petitioner was not entitled to any of the reliefs prayed for in the writ petition they should have simply dismissed the same with reasonable costs, if at all thought necessary. We are unable to fathom the thought - process of the learned Judges which caused them to impose a cost of Rs. One lakh while dismissing the writ petition. No special circumstances have been indicated by the learned Judges in their impugned order to indicate why such a heavy cost was required to be imposed on the writ petitioner.

18. The possession of the appellants tenanted premises was made over to the respondent No.2 pursuant to the aforesaid orders in the manner aforesaid.

20. Having regard to the aforesaid facts, the order passed on the contempt application directing possession to be taken by the Police authorities and to make over the same to the respondent No.2, appears to be in gross abuse of the due process of law which cannot at all be sustained.

21. What is of grave concern is the fact that the learned Judges completely disregarded the civil law relating to eviction and directed the writ petitioner on her writ petition for different reliefs to hand over possession of the tenanted premises to the respondent No.2. The case in hand is an example of how the writ courts have in recent times either forgotten or ignored the line between the reliefs which could be given by the Civil Courts and the Constitutional Courts. The learned Judges appear to have lost sight of the fact that they were deciding a writ petition for reliefs prayed for by the writ petitioner and not a civil suit for eviction against her and that in such a proceeding no mandatory order of eviction could be passed and certainly not against the writ petitioner herself. In fact, after imposing the cost of Rupees one lakh while dismissing the writ petition, the learned Judges added insult to injury by directing the writ petitioner to also vacate the premises, where she was running her business for about thirty years, within a week from the date of the order.

23. In the aforesaid circumstances, we have no hesitation in setting aside the order of the High Court dated 26.6.2006 and to direct the High Court to reconsider the matter afresh. Having regard to the arbitrary and unlawful manner in which possession of the premises in question was made over to the respondent No.2 the said respondent is directed to restore possession of the premises in question to the appellant within a fortnight from date. The cost imposed by the impugned judgment and the contempt proceedings are also quashed.

24. This order will not preclude either of the parties from pursuing their reliefs, if any, further before the appropriate forum .

25. The appeal is accordingly allowed with cost of Rs.25,000/- to the appellant.