Calcutta High Court
Food Corporation Of India vs Anurag Properties Pvt. Ltd on 13 April, 2011
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
APO No. 270 OF 2009
WITH
WP 892 of 2009
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
FOOD CORPORATION OF INDIA
Versus
ANURAG PROPERTIES PVT. LTD.
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
The Hon'ble JUSTICE SYAMAL KANTI CHAKRABARTI
Date : 13th April, 2011.
Mr. Jayanta Kumar Mitra, Sr. Adv.
Mr. P.K. Chaudhuri, Adv.
........for appellant.
Mr. Joydeep Kar, Adv.
Mr. A. Dutta, Adv.
......for respondents.
The Court: - This appeal is directed against the judgment and order of the Learned Single Judge passed on 28.8.2009 by which His Lordship has been pleased to allow the writ petition directing the tenant to pay to the writ petitioners rent @Rs.5/- per sq. ft. in accordance with the decision of Mr. R.S. Soni made prior to institution of writ petition being WP 1165 of 2003.
Before we proceed further in the matter we record the short fact which has culminated in filing this appeal. The respondent no. 1 company is the owner of the premises being 10-C Middleton Row, Calcutta 700 071 and the appellant before us is the tenant in respect of 4938 sq, ft, covered area on the 5th floor (hereinafter referred to as the said premises). By a lease agreement dated 8.5.1972 the appellant was 2 inducted in respect of the demised portion of the said premises at a monthly rent of Re.1/- per sq. ft. inclusive of rates and taxes. The said lease dated 8.5.1972 was initially for a period of one year with an option for renewal of the same for a longest period of three years, one year at a time.
Admittedly the appellant has been in possession as a tenant and the respondent no. 1 is still the owner/landlord.
Thereafter, the landlord owner wanted revision of the aforesaid rate of rent and several correspondence were exchanged with the appellant, however, same did not yield any result. Therefore, the respondents filed a writ petition in this Court being WP 2456 of 1999l to obtain relief for appropriate revision of rate of rent. The said writ petition was disposed of by order dated 3.1.2000 by Hon'ble Mr. Justice Pinaki Chandra Ghose directing the Zonal Manager, Food Corporation of India to treat the writ petition as representation before him and to consider and dispose of the same with a reasoned order within six weeks thereof. The Zonal Manager thereafter pursuant to the said order upon hearing the parties decided and fixed rate of rent @Rs.5/- per sq. ft. with effect from 1.11.1999. However, the writ petitioners/respondents were not happy with the said decision and asked the said Zonal Manager to review and recall the said earlier reasoned order. The Zonal Manager, was not inclined to accept the prayer of the writ petitioners/respondents. Therefore, on 29.3.2003 the said office confirmed earlier decision fixing rate of rent. The writ petitioners/respondents thence filed second writ petition challenging the said order dated 29.3.2003. The second writ petition was also disposed of by the Hon'ble Justice Pinaki Chandra Ghose by order dated 10.9.2003 directing the respondent authorities to reconsider the matter and to exercise the power properly and reasonably after taking into account the facts and circumstances prevailing on that date. The appellant before us being aggrieved by the said order passed in the second writ petition dated 10.9.2003 preferred appeal against the said order. The Division Bench of this Court by Judgment and order dated 3.8.2006 allowed the appeal. While allowing the Division Bench has been pleased to hold in substance that disputes between the parties are of private nature and there is no existence of public element.
3Therefore, the writ petition ought not to have been entertained at all. The Division Bench was also pleased to come to a legal finding even to the extent that dispute of this nature can exclusively be entertained and decided by Rent Controller appointed under the West Bengal Premises Tenancy Act, since the relationship between the parties are of landlord and tenant governed by the provisions of the West Bengal Premises Tenancy Act.
The writ petitioners/respondents took this matter to the Hon'ble Supreme Court by filing an SLP and the said SLP was dismissed by an order dated 5.1.2009 in the manner as follows;-
"Heard learned Counsel for the parties. We do not find any ground to interfere with the impugned order. The special leave petition is, accordingly, dismissed with liberty to the petitioners to avail such remedy as is available to it under the law."
After dismissal as aforesaid the respondents/writ petitioners filed a third writ petition on which the impugned judgment and order was passed asking for appropriate relief.
Mr. Jayanta Kumar Mitra, Learned Senior Counsel appearing for the appellant contends that Learned Trial judge should not have entertained the writ petition in view of the legal findings recorded by the Division Bench on identical issue between the same parties. Precisely, the Learned Trial Judge has no jurisdiction to entertain the writ petition far less to pass any order on this matter. Moreover, it was also held by the Division Bench that the appropriate forum is the Rent Controller and not the Writ Court. According to him, these findings have reached its finality because of the dismissal of the SLP and it is obviously binding conclusively upon both the parties.
The Learned Trial judge, however, failed to apply the earlier judgment and order of the Division Bench by not dismissing the writ petition in limine, accordingly, this order is not sustainable.
4On merit Mr. Mitra submits that the decision taken by the Zonal Manager earlier in terms of the order of this Court was not in his official capacity and such decision of revision of rate of rent is not binding on the administrative side of the appellant. Hence, the said decision cannot be treated to be an admission as recorded by the Learned Trial Judge. He submits that perhaps Learned Trial Judge has erroneously equated the functioning in terms of the Court's order with that of in his official capacity, and thereby failed to understand the distinguishing factor and identify demarcating line of two function. Hence the judgment and order are not sustainable.
Mr. Kar, Learned Counsel on the other hand advanced argument supporting the impugned judgment and order and contends that when the Zonal Manager has taken decision in terms of the earlier order of the Court this decision should have been accepted by the Food Corporation of India in its administrative side, and rate of rent should have been revised. Accordingly, the jurisdiction of the Writ Court cannot be curtailed by any statutory provision nor by any pronouncement of the judgment of Court. The power of the Court under Article 226 and 227 is one of the basic structure of the Constitution and this cannot be taken away by any Legislation not even by amendment of the Constitution far less by pronouncement of judgment in Court. This law has been settled in the case of (Kesabananda Bharati vs.State of Kerala) reported in AIR 1973 Supreme Court page 1461, followed by in the case of (L.Chandra Kumar Vs.Union of India) reported in AIR 1997 SC 1125. This Court should examine the judgment of the Learned Trial Judge in that perspective also.
We have considered the contention and rival contention of the Learned Counsel for the parties, we are of the view that it has been rightly pointed out by Mr. Mitra that the Learned Trial Judge ought not to have accepted the second writ petition to decide the issue in adversarial method. The Division Bench on earlier occasion has specifically held that the present dispute between the parties are on the private law field and not in the public domain. Hence, second writ petition is not maintainable though the FCI being a statutory body, otherwise amenable to writ jurisdiction as it is "State" within the meaning of Article 12 of the Constitution of 5 India. The Division Bench has expressly held on earlier occasion in the proceeding between the same parties that subject matter do not pertain to discharge of any statutory duty by the FCI under the Statute and it concerns with deal of private nature. These legal findings and pronouncement have been accepted by the Supreme Court with reasons and without interference. The Judgment of the Supreme Court rejecting SLP with some reasons operates as bar between the same parties, and makes the judgment and order initially impugned and affirmed & finally binding on the parties.
We are, therefore, unable to accept the contention of Mr. Kar that aforesaid three decisions will be of help in this matter. The power under Article 226 and 227 is no doubt vast, pervading and is almost akin to power conferred upon Supreme Court under Article 142 of the Constitution of India to render complete justice. In our view power can only be exercised under Article 226 when proceedings under the aforesaid Article is entertainable on the given facts and circumstances of the case. When Division Bench held earlier that identical disputes between the same parties are of private character and nature and it can only be resolved in the private law field by the appropriate forum. The words "any person or authority" employed in the Article do not enlarge area of dispute beyond permissible one.
In substance the Division Bench has held this dispute has to be decided by a forum which is created by the Statute for settling a dispute which is of a private nature, it is true the FCI is a statutory authority amenable to the jurisdiction under Article 226 as it is a "State" within the meaning of Article 12 of Constitution of India, but nature of dispute in this case is such that there is no attribute of public element. As such we accept the argument of Mr. Mitra that the Learned Trial Judge should have applied the ratio decided earlier by Division Bench. We find that the learned Trial Judge has completely overlooked the ratio and according to us this finding is absolutely binding upon the learned Trial Judge. The writ petition should have been dismissed.
After we come to these findings it has been appropriately brought to our attention that Division Bench has provided two mechanism, one course is to approach 6 for settling the dispute by the adversarial method before Rent Controller and another one is for amicable settlement. Latter method is for sitting of the parties for coming to decision mutually, whether decision arrived at by Zonal Manager should be accepted or not. We think having regard to the location of the premises the revision is undoubtedly of utmost necessity and today we are informed that both the parties are eager to sit together and negotiate. Therefore, we do not close the matter even after above conclusion, and we must give the parties chance to sit together, accordingly both the Learned Counsel will sit together and they will try to bring about settlement, if possible, for this purpose this matter is adjourned for one week.
All parties are to act on a photostat signed copy of this order on the usual undertakings.
(KALYAN JYOTI SENGUPTA, J.) (SYAMAL KANTI CHAKRABARTI, J.) GH.