Calcutta High Court
Ratan Kumar Khaitan vs United Bank Of India And Ors. on 13 August, 2003
Equivalent citations: III(2004)BC224, (2004)1CALLT183(HC)
Author: S.K. Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT S.K. Mukherjee, J.
1. This is an application under Article 227 of the Constitution of India against an order dated January 6, 2003 passed by the Recovery Officer, Debt Recovery Tribunal-Ill, Calcutta in T.R.P. No. 33 of 2002.
2. The opposite party No. I/United Bank of India initiated a proceeding against the certificate debtors for recovery of its claim and obtained a certificate against the certificate debtors. For satisfaction of the dues of the bank premises No. 3 Panchu Dhobani Gali, Calcutta has been put to sell.
3. The father of the petitioner in this application, Gopal Lal Khaitan, was inducted as a tenant in respect of the said premises under an agreement, executed by the opposite Party Nos. 3 and 4 on May 1, 1968. The tenancy commenced from May 13, 1968. Upon the death of the said Gopal Lal Khaitan, the said tenancy devolved upon the petitioner in this application.
4. The receiver appointed by the Tribunal in the recovery proceeding inserted advertisements once in the Statesman, once in the Anandabazar Patrika and once in Sanmarg seeking offers to sell the said premises No. 3 Panchu Dhobani Gali, Calcutta. The sale notice has been annexed as annexure "P-8" to this application. It appears from the said sale notice that the property is to be sold "as is where is basis".
5. The petitioner in this revisional application filed an application before the Tribunal asserting his tenancy right and for an order to restrain the said receiver from dispossessing the petitioner from the tenanted premises.
6. After hearing the learned advocates appearing for the bank, certificate debtor, the purchaser, the petitioner and the receiver, the Recovery Officer fixed September 6, 2002 as the next date of hearing.
7. However, on January 6, 2003 the Recovery Officer passed the impugned order and directed the petitioner, who is a tenant in respect of the premises in question, either to vacate or to offer the real value to the portion over which he has been found remaining in possession. It was held that no good purchaser should come forward to bid for the premises in question in the public auction as a tenanted movable property would not fetch a price being conducive to the prevailing market price of the said movable property,
8. Being aggrieved the petition has come up with this application under Article 227 of the Constitution of India.
9. The petitioner is a tenant and is, therefore, entitled to all the protections available under the West Bengal Premises Tenancy Act. The Recovery Officer of the Tribunal has no power under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 to pass an order of eviction against a bona fide tenant in respect of a mortgaged property. Therefore, the order impugned in this application is wholly without jurisdiction. The Recovery Officer of the Tribunal acted without jurisdiction in appointing a receiver in respect of the property in question to take possession from a lawful tenant when a competent forum has not passed a decree for eviction.
10. Mr. Saptangshu Basu, learned advocate, appearing for the opposite party No. 1, argued that the present application under Article 227 is not maintainable inasmuch as the orders passed by the Recovery Officer are appealable before the learned Presiding Officer of the Tribunal concerned. The petitioner invoked the jurisdiction of this Court under Article 227 of the Constitution of India challenging the said order passed by the Recovery Officer. In my view, the order impugned is ex facie as perverse. It is settled principle of law the power of general superintendence conferred under Article 227 of the Constitution of India cast a duty on the part pf the High Court to keep all the Courts and the Tribunals within the bounds of their authorities and to ensure proper functioning of the justice delivery system. The jurisdiction of the High Court under the said Article is wide enough to give substantial relief and to do substantial justice. Therefore, there is no doubt that the High Court can interfere with the orders passed by the Courts and the Tribunals under Article 227 of the Constitution of India when orders are passed without jurisdiction. There is no dispute with the proposition of law that existence of an alternative remedy is not an absolute bar in entertaining an application under Article 227 of the Constitution of India when it is established that the orders impugned in such an application have been passed without jurisdiction or against the principle of natural justice or are manifestly illegal. The Recovery Officer of the Tribunal constituted under the said Act of 1993 has not been empowered to pass an order of eviction against a tenant.
11. Apex Court in Paul Brothers (Tailoring Division) and Ors. v. Ashim Kumar Mondal reported in AIR 1991 SC 796 held that the sale on an "as is where is basis" means without prejudice to the claims of other persons in whose favour bona fide encumbrances or interest might have been created earlier qua the property. The order of the Court could not be availed of to ride rough-shod over the rights and interest of others in the property which have been created bona fide. Third parties, who have acquired real interests in the property, could not be called upon to give up their rights. Consequently, the auction purchaser could not claim vacant possession of the property as against lawful tenants.
12. The petitioner in this revisional application is admittedly a tenant in respect of the premises in question. The certificate debtors mortgaged the said premises and in the recovery proceedings a receiver has been appointed to sell the property. Nevertheless, a property should be sold "as is where is basis" and a bona fide tenant in respect of the said premises cannot be evicted taking recourse to the recovery proceedings. The Tribunal has directed sale of the mortgaged property, but it cannot be said to mean that the property should be sold in vacant possession or that the auction purchaser has been entitled to vacant possession of the premises in question. A tenant in lawful possession cannot be evicted from the property.
13. Therefore, the Recovery Officer had no authority to pass an order directing the petitioner either to vacate or to offer the real value to the portion over which he has been found remaining in possession.
Accordingly, the order impugned in this application is set aside. The Recovery Officer is directed to proceed with the recovery proceedings strictly in accordance with the law.
The application under Articles 227 of the Constitution of India is, thus allowed.
I make no order as to costs.
Xerox certified copy of this, order, if applied for is to be supplied on urgent basis.