Calcutta High Court (Appellete Side)
Lalan Pandey @ Lallan Pandey vs State Of West Bengal & Ors on 11 February, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
11.02.2014.
d.p.
M.A.T 1663 of 2011
(CAN 11756 of 2011)
Lalan Pandey @ Lallan Pandey
versus
State of West Bengal & Ors.
Mr. Ashish Chandra Bagchi,
Mr. Prabir Kr. Misra,
Mr. Shibendra Nath Chattopadhyay.
... For the Appellant.
Mr. Subhabrata Datta,
Mr. Debashis Sarkar.
... For the State.
Mr. Amitabha Ghosh,
Mr. Asish Santra.
... For the Respondent No. 5.
Mr. D. P. Mukherjee, Mr. Debjit Mukherjee.
... For the KMC.
This mandamus appeal is directed against an order passed by the Learned Single Judge of this Court on 2nd September, 2011 in W.P. 12760(W) of 2011 refusing to grant interim relief in favour of the petitioner. While entertaining the writ petition, point of maintainability of the writ petition was kept open by His Lordship.
Let us now consider as to how far the Learned Single Judge was justified in refusing to pass interim order in the facts of the instant case.
2Since a question relating to maintainability of the writ petition was raised before the Learned Single Judge and also before us, we feel it necessary to resolve the said dispute first before entering into the merit of this mandamus appeal.
In the writ petition filed by the appellant, the legality and/or propriety of the order passed by the Controller, Kolkata Thika Tenancy on 7th December, 2010 in Misc. Case No. 73 of 2009 was challenged.
It was contended by the respondents that since such an order was assailable before the West Bengal Land Reforms and Tenancy Tribunal under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, the writ petition is not maintainable before this court. In substance, the contention of the respondents was that the writ petition is not maintainable as an alternative remedy for challenging the order passed by the Controller is available in the statute itself.
Apparently, we find substance in such contention of the respondents as it is rightly pointed out by the Learned counsel appearing for the respondents that the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 was a specified Act under Section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 and as such any order passed by the Controller, Kolkata Thika Tenancy is assailable before the Tribunal.
In this context, we have to examine the order of the Thika Controller which is impugned in the writ petition. According to the Appellant, the order of the Thika Controller having been passed by the Thika Controller in violation of the principle of natural justice, 3 the said order can be challenged in writ jurisdiction of this court without resorting to the remedy by way of appeal before the Tribunal. Thus, the Appellant in fact, wants to take the help of the judgement of the Hon'ble Supreme Court in the case of Whirlpool Corporation -vs- Registrar of Trade Marks, Mumbai reported in (1998)8 SCC page 1 wherein it was held that availability of alternative remedy would not operate as a bar in at least three contingencies which are as follows:-
i) where the writ petition seeks enforcement of any of the fundamental rights;
ii) where there is violation of principles of natural justice;
or
iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged.
Mr. Bagchi, Learned advocate appearing for the appellant/petitioner submits that this is a case where the second exception is squarely attracted as the principle of natural justice has not been followed by the Controller, while passing the said order. He has taken us through the entire judgement and/or order of the Thika Controller to impress upon us that the issues which were raised before the said authority, were not completely answered by the said authority. He further contends that not deciding an issue raised before the authority amounts to violation of principle of natural justice.
In the light of such submission advanced by Mr. Bagchi, we have considered the order of the Controller, Kolkata Thika Tenancy dated 7th December, 2010 passed in Misc. Case 73 of 2009. On perusal of the said order, we find that three issues were framed after considering the rival claims of the parties. These are the 4 following issues which were framed by the Controller in the said proceedings:-
1) Whether the premises is Thika Tenanted and if so to what extent?
2) Whether the Applicant Party or the O.P. No. 1 are the Thika Tenants and to what extent?
3) Whether the deed of sale dt. 13/8/1991 executed by O.P.
2 in favour of O.P. 1 is valid?
Let us now consider as to how those issues were decided or in other words, whether the issues which were so framed by the Controller, were all decided by the Controller or not?
On perusal of the said order of the Controller, we find that while deciding the issue No.1, the Controller held that the subject premises is Thika tenanted.
Thus, we find that first part of issue No.1 was decided. Let us now consider as to whether the other part of issue No.1 i.e., if so, to what extent, was decided by the Controller or not. We find that though the Controller, while deciding the issue No.1, did not come to any positive finding as to the extent of Thika Tenancy in the said property but in the ordering part, the Controller held that the applicant therein viz. the respondent No.5 was a Thika Tenant in respect of portion of the subject premises covering area of 500 sq.ft. and the rest portion of 463 sq.ft. in the premises is also Thika Land. Thus, if this conclusion part of the said order is taken into consideration along with discussion on issue No.1, we find that an area of 500 sq.ft. + 463 sq.ft. = 963 sq.ft. in the said premises was held to be the Thika property within the said premises. However, we cannot lose sight of the fact that the conclusion of the 5 Controller regarding the rest part of 463 sq.ft., being Thika land is evasive as no reason has been assigned in support of such conclusion.
Let us now consider as to how the issue No.2 was decided. Issue No.2 comprises of various parts i.e.:- i) whether the respondent No.5 is a Thika Tenant, ii) whether the appellant before us is the Thika Tenant and (iii) to what extent?
We have meticulously considered the order of the Thika Controller wherefrom we find that the Controller held that the applicant viz. the respondent No.5 herein is a Thika Tenant in respect of 500 sq.ft. But the other part of the said issue which related to the claim of the appellant before us regarding his Thika Tenancy, has not been answered by the Controller at all.
Let us now consider as to how the Controller decided the other issue i.e. issue No.3 raised in the said proceeding. The said issue was:- whether the deed of sale dated 13/8/ 1991 executed by the O.P. No.2 in favour of the O.P. No.1 is valid?
This issue was decided by the Controller by holding that since the O.P. No.1 viz. the appellant before us purchased thika land which vested in the State from the O.P. No.2, the appellant before us, has not acquired any interest thereon. Incidentally it may be mentioned that even assuming that this finding is ultimately approved still then the issue regarding the Appellant's claim for his Thika tenancy ought not to have been left undecided.
Let us now tests as to how far, such decision was legal in the facts of the instant case.
6From the nature of the issue No.3 as it was framed by the Controller, it appears before us that legality of the sale deed dated 13/08/1991 executed by the O.P. No.2 in favour of the O.P. No.1 was under consideration before the Controller. If the said issue is decided against the O.P. No.2 therein, then certainly he will be adversely affected. As such we hold that the respondent No.2 was vitally interested in the said proceeding.
Thus, we feel that such an issue ought not to have been decided in the absence of the O.P. No.2 who was vitally interested to support the legality of such transaction made by him. He cannot be held to be an unnecessary party because ultimately it is he who will have to suffer consequences, if the sale is held to be invalid. Thus, we hold that he had a right to justify his action before the authority to support the legality of the said transaction but in the present case we find that the entire proceeding was decided without effecting service of notice upon the opposite party No.2 therein.
Such a decision, in our view, is absolutely illegal as such decision was taken in complete violation of the principles of natural justice as the right of a party who was before the court, was adjudicated upon in his absence and without notice to him. If this is not a case of violation of the principle of natural justice, then there will be no case at all where we can hold that the principle of natural justice was violated.
Accordingly, we come to the conclusion that this is a case where the Controller passed the said order in violation of the 7 principle of natural justice. Again the issues which were raised, were not even completely decided by the Controller.
As such, we are of the view that this writ petition comes within one of the exceptions as pointed out by the Hon'ble Supreme Court in the case of Whirlpool Corporation -vs- Registrar of Trade Marks, Mumbai (supra) and as such, the alternative remedy by way of appeal before the Tribunal cannot stand in the way in maintaining the writ petition. Thus, we hold that the writ petition is maintainable.
Since we have decided that the Controller passed the said order in violation of the principle of natural justice and all the issues which were raised before him, were not answered, the order passed by the Controller cannot be retained on record.
Thus, instead of sending it back to the Learned Single Judge for consideration of the writ petition on merit, we feel that justice will be subserved if, instead of sending it back to the Learned Single Judge for consideration of the writ petition on merit, we send it to the Controller for fresh hearing after giving an opportunity of being heard to all the parties before the Controller.
The order passed by the Controller, Kolkata Thika Tenancy on 7th December, 2010 in Misc. Case No. 73 of 2009 is thus, set aside.
The Controller is directed to dispose of the said proceeding by passing a reasoned order in support of his conclusion after giving a reasonable opportunity of hearing to all the parties before the Controller as expeditiously as possible.
8In view of the disposal of the appeal in the manner as aforesaid, the writ petition is also deemed to be disposed of.
Both the appeal and application are disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner immediately.
( Jyotirmay Bhattacharya, J ) ( Ishan Chandra Das, J.)