Under Articles 226 and 227 of the Constitution of India, the High Court does not interfere where an equally efficacious alternative remedy is available to the aggrieved party. But where a case is an example of a gross miscarriage of justice and abuse of the process of court, the court exercises its superintending jurisdiction under Article 227 of the Constitution of India. A single-judge bench comprising of Justice Sabyasachi Bhattacharyya in the matter of Smt. Chandrani Sarkar Vs. Sudipa Chowdhury and others (Co No. 1186 of 2020), dealt with an issue where the petitioner, has filed an application under Article 227 of the Constitution of India against the order passed by the State Consumer Disputes Redressal Commission.
In the present case on June 16, 2016, the petitioner purchased the disputed property by registered deed from the owner of the property and an alleged constituted attorney of the Owner. Initially, the opposite party no. 1 had filed a complaint against opposite party no. 2, before the consumer forum alleging that opposite party no 2 had refused to honor the agreement of sale of disputed Property to opposite party no. 1, which opposite party no. 2 agreed to in the agreement. On Feb 28, 2014, an award was passed against the favor of opposite Party no. 2 directing delivery of possession to opposite party no. 1, in the alternative for a refund of the consideration money. To this Opposite party, No 1 initiated an Execution Appeal (EA 251 0f 2014) where the execution forum had directed an advocate commissioner to execute a registered deed of conveyance on behalf of opposite party no.2 and the police also directed to handover the possession of the disputed property to opposite party no.1. to this direction, the advocate commissioner executed and registered a sale deed in favor of the opposite Party no. 1, which is subsequent to the purchase deed of the petitioner.
Now opposite party no. 3 had already handed over possession of the disputed flat to the petitioner’s husband so handing over the possession of such flat to opposite party no. 1 was not possible. But, as per the order, Opposite party no. 2 was directed to refund the consideration money which was taken from opposite party no.1, and also a warrant of arrest was executed against opposite party no. 2, to implement execution.
On 30th August, 2019 the opposite party no.1 made an application in EA 251 of 2014, for recovery of possession of the flat from the petitioner’s husband, who was already residing in the disputed flat. Moreover, as because the warrant of arrest was not possible to be executed anymore, so the executing Forum directed the police to assist the opposite party no. 1 in recovering the possession of the disputed flat. Thereafter the opposite party no. 1 with the help of police put her padlock over the petitioner padlock on the entrance of the flat.
On June 30, 2020, the appellate commission had set aside both of the impugned orders and the awards passed regarding police help and taking possession from the petitioner’s husband, both were nullified. But the state commission could not grant complete relief to the petitioner by not granting restoration of possession to the petitioner/petitioner’s husband. Whereas such possession was obtained by the help of those two impugned orders in the appeals, both of which were set aside.
The petitioner contended that the executing forum acted beyond its jurisdiction. Its charter was limited to executing the award, which stated alternative of possession to be handed over to the opposite party no 1 that is the opposite party no. 2 was directed to refund the consideration amount to opposite party no. 1, as well as a warrant of arrest, was issued against opposite party no.1, to implement the execution. Moreover, the petitioner also contended that even after knowing that the petitioner’s family was in possession of such flat on the basis of a valid sale deed, yet the executing forum directed delivery of possession to opposite party no. 1, with police help.
The counsel of the Petitioner pointed out that the direction to execute and register a deed of Conveyance in favor of opposite party no. 1 was not valid because, the petitioner had prior title over the flat by virtue of the previously registered sale deed, and hence it would prevail over the subsequent sale deed in favor of the Opposite party no.1.
The counsel appearing for opposite party no.1 contended that in such a situation opposite party no. 1 is not be blamed as a valid order was passed by executing a forum granting police help for taking back possession. It also contended that the possession granted in favor of the opposite party was legal and valid as pursuant to the order of executing forum, when the possession was delivered to opposite party no. 1, it was done before the appeal was made before the state commission, against such order. Hence such order was still in force.
Further, the counsel for the opposite party no.1 also contended that in the year 2020 a title suit was initiated by the opposite party no. 1 in respect of the suit flat before a civil court. In this view, an injunction order was passed restraining the petitioner from disturbing the peaceful possession of opposite party no.1. hence the Authority of the State Commission cannot override the decision of the civil court, where the question of title is still sub judice.
Later the court after considering the contentions of both sides came to the conclusion that” under normal circumstances, the High Court does not interfere in judicial review under Articles 226 and 227 of the Constitution of India where an equally efficacious alternative remedy is available to the aggrieved party, such interference is justified in cases like the one at hand, which is a burning example of a gross miscarriage of justice and abuse of the process of the court.” In the present case, the injunction order was obtained by practicing fraud and by suppressing material facts because the possession of the opposite party after June 30, 2020, it cannot be said to be legal. Also, it was considered that the possession of the flat remained with the petitioner as the petitioner’s padlock was never removed from the Disputed flat rather an additional padlock was affixed by the opposite party no. 1 with the help of the police. Hence the opposite party no. 1 has never taken actual possession of the disputed flat.
The Court allowed the application, thereby modifying the impugned order passed by the State Consumer Redressal Commission and, the opposite party no.1 is directed to restore possession of the flat-in-dispute to the petitioner at the earliest within 30 days from the date of this order. In case of default of compliance of the court’s order, the court held the petitioner in liberty to approach a local police station for assistance in breaking open the padlock of the opposite party no. 1 and restoring back possession of the flat, and in such situation, the local police is to provide all possible assistance to the petitioner.
