Gopiram Agarwalla vs Smt. Bina Agarwalla and Another

T.N. Singh, J.—The pleasant and refreshing aspect of this case is the motivational gesture of the counsel, motivated by the desire to further ends of justice by ending speedily the litigation in this Court, counsel submit that for a quick disposal of the matter records ready called for need not be awaited; that the matter may decided instantly as the point of law involved is short and simple one and needs no detailed investigation of facts.

On 15.12.84 the Deputy Commissioner, Kohima, rendered (Sic) interesting order. I have no doubt that the order ex facie (Sic) fests complete absence of judicial approach. Not only the order, was rendered exparte but the consequences it was expected to bring about did not at all weigh with the Court below. What is ordered is that the Police will evict the "tenant" (Petitioner) breaking open locks of the room and removing the articles the tenant to the Police Station. This, despite the fact that (Sic) Petitioner" before learned Deputy Commissioner, Kohima was a ''Plaintiff (and not a ''decree holder'') who bad filed in the court of Additional Deputy Commissioner, Dimapur, What really happened is, O.P. No. 2 in this petition figured as Plaintiff or ''Petitioner'' in a proceeding Instituted on 9.11.84 evicting the revisionist from the concerned premises, as tested by Annexure 1, and when the proceeding was still Pending in Dimapur Court, behind the back of the revisionist, O.P. No. 2 moved another petition in Kohima Court on the impugned order was passed.

I feel disposed to observe that right to shelter is a fundamental right of a citizen under the Constitution. If he has the right to live guaranteed to him under Article 21, it guarantees a dignified living under a shelter and be certainly cannot be thrown out summarily to the streets from a place which has sheltered him. If he is carrying on trade or business on a premises his right under Article 19(1)(g) will be infringed if it is unreasonably tempered within an unauthorised or arbitrary manner. Indeed, as held in Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, even in such cases Article 21 will be Infringed. The right to earn livelihood of such a citizen would be thereby impaised. The expression "life" does not cannot a mere animal existence, so it was held by their lordship Reference made to "dignity of individual" in the Preamble to the Constitution, of which notice was taken in Kharak Singh ( AIR 1985 SC 1295) also bears reiteration in this context, I have no doubt, therefore, that right to a dignified exstence under a shelter is inherent in Article 21. If a person is under a shelter as a living human being of 20th century (not belonging to the stone age) accustomed to the finer graces of the modern civilisation, he is entitled to live there or even continue there his, trade or profession to earn his livelihood enjoying protection of the shelter until he is evicted therefrom in accordance" with the procedure prescribed by law. Not only his fellow citizen even the State cannot, using its ''Police power'' evict him in an illegal and arbitrary manner. Learned Deputy Commissioner, Kohima ought to have borne this in mind while passing the impugned order inasmuch as in the instant case the revisionist ex facie appeared to assert the right of a "tenant" on his own finding. What the learned Deputy Commissioner, Kohima clearly overlooked was that revisionist was not a pavement dwaller in whose case there may not possibly exist any scope (Sic) exercise right to shelter for the apparent reason that the pavaments are not meant to give shelter to any citizen but all citizens the fundamental rights of freedom of movement (Sic) enable which to be exercised legally and constitutionally is the ''fundameatal duty" of every citizen under Article 51 A. These observations I have been provoked to make as Mr. Barua submitted that law do grant "police help" to a party to evict tenant. Indeed, when an application is made to an Executing Court for such "help" it may consider the prayer in accordance only with the provisions of Code of Civil Procedure, but In the instant case, where (sic) the decree? Admittedly, the ''suit'' remained undecided by the patent court and yet the so called "police help" was given (Sic)evict the tenant rendering an exparte decision against him (sic) telescoping the judicial process and totally eclipsing the right of the parties to fair trial in accordance with law.

Mr. Laskar, learned Counsel for the revisionist, submits that the impugned order is patently without jurisdiction inasmuch is not only no appeal lay to the Deputy Commissioner against the interlocutory order passed on 10.11.84 by the trial court but in fact no appeal was filed and the impugned order was rendered on a mere "petition" invoking executive powers of the learned Deputy Commissioner. Such "petition" was not maintainable and had to be rejected and in any case no order (Sic) could be passed behind his back to his prejudice, On (sic) perusal of the order I find, Mr. Laskar''s grievance has sub(sic)tantial merit. Indeed, the tone, tenor, content and purport of he order leave no room to doubt that it was meant to an executive order which could not be passed to render ineffective judical process.

However, learned Counsel for the O.P. s, Mr. P.G. Baruah while fairly conceding that the impugned order is without jurisdiction, the order having been rendered exparte, submits that the learned Deputy Commissioner had no opportunity to consider the objection to his jurisdiction to entertain the "petition" or appeal. To this submission there cannot be and there has not been any contest. However, Mr. Laskar drew my attention to the order passed by the trial court on 10.12.84. It appears that the order was in the nature of an interlocutory order, Learned Additional Deputy Commissioner, Dimapur, by his order dated 10.12.84 called for a report from the Revenue Officer to decide the question of title which was stated before him. Before be could render decision on the question the judicial process was scuttled. Because, by the impugned order passed on 15.12.84 the learned Deputy Commissioner, Kohima, recorded a categorical finding that "a tenant has right to stop the landlord from enjoying rights over his building, ADC Dimapur failed to decide the real issue of tenancy in sufferance". No argument is needed to demonstrate the invalidity and illegality of this finding. Because, no decision at all was rendered and therefore there was no question of the trial court having failed to decide the real issue.

Despite all that has been said in the impugned order which must be considered to be nonest in law as I feel did posed to set aside the same, it is necessary still to accept Mr. Baruah''s submission. Because, the settled law is that any tribunal whose jurisdictional competence is challenged has got the Jurisdiction to decide the question of its own jurisdiction, and therefore the revisionist not having agitated the question before the learned Deputy Commissioner the jurisdiction to decide the question by him is not shuttered. It remains open. The question has to be decided. It has to be decided by him first. If the revisionist is aggrieved it will be open to him to come to this Court to challenge the decision rendered by learned Deputy Commissioner, Kohima.

However, Mr. Laskar expressed another apprehension of which care must be taken. He is vocal in expressing the fear that a similar action may again be taken against the revisionist directing his summary eviction by the police, if the order is rendered against him. His fears must be allayed because justice is not to appear impotent Because also it is the duty of this Court to ensure that subordinate Courts and Tribunals are appraised of the prime relevance and potency of the concept of rule of law pervading the working, and directing the course, of the judicial system of this country as ordained by the Constitution. Accordingly, I direct that in the event any order is rendered by learned Deputy Commissioner, Kohima, against the revisionist, be shall stay operation thereof for a period of one month to allow the revisionist to approach this Court if he feels aggrieved thereby.

In the result, this application is allowed. The rule is made absolute after hearing the parties. The impugned order? passed on 15.12.84 by learned Deputy Commissioner, Kohima, is set aside. He shall issue notice is the revisionist in the event O. Ps No. 2 presses his "petition" afresh for adjudication. He shall render order on the "petition" only after bearing both sides, In the circumstances of the case and in view of the fair concession made by Mr. Baruah, I mike no order AS to costs.