SUBRATA KUMAR DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is at the instance of the private respondents in a writ-application and is directed against ex parte order dated May 5, 2009 passed by a learned Single Judge by which His Lordship disposed of the writ-application by directing the police authority to ensure that the writ-petitioner's access to the house in question was not impeded by the appellants unless they obtained an order from an appropriate forum to such effect. His Lordship also directed the police authority to ensure that there was no threat or intimidation by the appellants to the writ-petitioner. It was further directed that the police authority will be free to break open the padlock of the house that the appellants might have put up with this restriction that the said order would be effective only against the appellants and should not be used against any third party. Being dissatisfied, the private respondent Nos. 5 and 6 of the writ-applications have come up with the present appeal. The writ-petitioner is the father of the private respondent No. 5 and father-in-law of the private respondent No. 6 and those two respondents are the appellants before us. In the writ-application, it was alleged that the writ- petitioner had bad relation with appellant No. 1 being his elder son and the appellant No. 2, the daughter-in-law, as they married according to their own volition against the wish of the writ-petitioner. It is alleged that the writ- petitioner, in the past, made complaints against the appellant No. 1 who is an employee of Border Security force but the police took no action. The real cause of action for filing the writ-application arose on 29th July, 2008 when the writ-petitioner lodged a diary before the Chinsurah Police Station complaining that his wife, namely, basanti Das committed suicide by setting on fire on that day and praying for rendering him assistance so that he might perform her last rite by cremating her body. It is admitted in the writ-application that the respondent No. 5, on the other hand, on 31st July, 2008 lodged a complaint before the police alleging that his mother committed suicide at the instigation of the writ-petitioner and on that basis, a Police Station case No. 175 of 2008 was initiated under Section 306/120b of the Indian Penal code and the writ-petitioner was arrested. It is further admitted in the writ-application that on 17th September, 2008 during his police custody, the respondent Nos. 5 and 6 took away all the belongings and the household goods of the writ-petitioner from the house and a padlock was on the door thereof and as such, he lodged a diary before the local Police Station on 20th September, 2008 but the police was not assisting him for getting back possession of the house. It was further admitted in the writ-application that during lifetime of his wife, the writ-petitioner gifted the house in her favour and the wife, in her turn, had transferred the same to the respondent No. 5 by way of registered deed of gift. The writ-petitioner, however, alleged that such deed of gift in favour of his wife was obtained by the pressure of the respondent No. 5 and similarly, the gift executed by the wife in favour of the respondent No. 5 was also not the outcome of free will of his wife.

(2.) AS indicated earlier, the learned single Judge by the order impugned in this appeal passed the order for restoration of possession in favour of the writ-petitioner with the help of police with the observation that the private respondents did not appear despite service.

(3.) BEFORE us, in the application for stay, it is alleged that the copy of the writ-application was never tendered to either of the appellants and was never served. We, accordingly, called for the original affidavit of service and found that according to the postal endorsement, the envelopes sent to the appellants at the address of 12, Dharam Das Gangully Lane, P. O. Shibpur, came back with the postal endorsement "refused" on '10th October, 2008'. The appellant No. 1 has by affirming affidavit annexed a certificate given by the concerned officer of the Border Security Force at Teliamura, Tripura certifying that the appellant No. 1 was in Tripura all along from 25th September, 2008 to 26th october, 2008 and did not take any leave during the said period.