Calcutta High Court
Smt. Arati Ghose & Anr vs Sri Satya Narayan Tripathi & Ors on 25 April, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Original Side)
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Tapan Kumar Dutt
And
The Hon'ble Mr. Justice Prasenjit Mandal
W.P. No. 300 of 2009
Smt. Arati Ghose & Anr.
Versus
Sri Satya Narayan Tripathi & Ors.
For the Petitioners: Mr. Soumen Chandra Basu,
Mr. Pratap Chatterjee,
Mr. Aniruddha Chatterjee,
Mr. Tapan Kumar Mukherjee,
Ms. Pampy Bose,
Mr. Nilay Sengupta.
For the Respondent No.1.: Mr. Ashis Bagchi,
Mr. Prabir Mishra,
Mr. Amitava Ray,
Mr. Supriyo Roy.
For the State: Mr. Balai Chandra Ray,
Mr. Sandip Srimani.
Heard on: 18.02.2011 & 01.03.2011
Judgment on: 25th April, 2011.
Bhaskar Bhattacharya, J.:
2 This writ-application has been referred to this Special Bench at the instance of Dipankar Datta, J. wherein His Lordship raised the following questions of law:
"a) Whether on the face of the West Bengal Premises Tenancy (Amendment) Act, 2009 which went unnoticed in Gopika Projects (supra), the decision therein ought to be considered good law? "b) Since Section 6(1) of the West Bengal Premises Tenancy Act, 1997 refers to "order or decree", whether "order" mentioned in Section 6(a) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 would include a "decree"? If not, which forum would be competent to entertain a challenge to such decree?
"c) Having regard to settled law that right of appeal must be conferred by statute, whether an order or decree passed by a learned Judge of a Civil Court in connection with a suit instituted under the West Bengal Premises Tenancy Act, 1997 is appealable before the Tribunal constituted in terms of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 despite no right for preferring appeal there against having been conferred by Section 43 of the West Bengal Premises Tenancy Act, 1997 or by any other provision thereof? "d) Whether the expression "decree" in Section 6(1) of the West Bengal Premises Tenancy Act, 1997 would have the same meaning as 3 defined in Section 2(2) of the Civil Procedure Code and further as to whether the provisions of such Code would regulate a suit for eviction to be tried by a Civil Judge having jurisdiction right from commencement till termination thereof in the absence of any such provision in this behalf in the aforesaid Act? "e) What would be the effect of a decree for recovery of possession passed by a learned Civil Judge who was never appointed as Controller in terms of Section 38 of the West Bengal Premises Tenancy Act for the purpose of Chapter III thereof? "f) Whether any final or interlocutory order passed in a suit for eviction by a Civil Judge having jurisdiction exercising power in terms of the West Bengal Premises Tenancy Act, 1997 can be challenged before this Court (Single Bench) either under Article 226 or Article 227 of the Constitution having regard to the provisions in Sections 7 and 8 of the West Bengal Land Reforms and Tenancy Tribunal Act?"
The facts leading to the filing of the aforesaid writ-application may be summed up thus:
a) The writ-petitioners initiated proceedings under Section 6 of the West Bengal Premises Tenancy Act, 1997 (WBPT Act) before the learned Judge, 5th Bench, Court of Small Causes at Calcutta, on December 4 8, 2004 for recovery of possession of the premises in question from the respondent No.1 who was the defendant in the said proceeding.
b) The relief claimed by the writ-petitioners was allowed and order for recovery of possession was passed on May 15, 2006. The proceedings travelled up to Supreme Court. The order for recovery of possession survived with certain modification and thereafter, it was put into execution.
c) By the order dated March 17, 2009, the learned Judge, Presidency Small Causes Court dismissed the execution case by relying upon the decision of a learned Single Judge of this Court in the case of Tapas Biswas Vs. Shyama Prosad Ghoshal, reported in 2009 (1) CHN
183. The decision of the learned Judge in execution case is quoted below:
"Since the Hon'ble High Court held that Presidency Small Causes Court has no jurisdiction and the decree passed by the Presidency Small Causes Court, Calcutta after the amendment of 2005 is nullity, this court has no jurisdiction to proceed with the instant execution case any further because the court cannot execute a decree which is a nullity.
"As this court has no jurisdiction to try the eviction suit under West Bengal Premises Tenancy Act, 1997, this Court has also no jurisdiction to execute the decree passed under the said Act due to inherent lack of jurisdiction.
Hence, it is Ordered 5 "That the instant petition filed by the Jdr is hereby allowed on contest but without cost.
"The instant execution case shall not proceed any further. "The decree holder/plaintiff is at liberty to make proper application in the original suit for return of the plaint.
Judge, 5th Bench"
d) The aforesaid order is the subject-matter of challenge in the writ-
application wherein the writ-petitioners have prayed for the following relief:
"a) A declaration that Presidency Small Causes Court at Calcutta has and had, a jurisdiction to hear the Ejectment Suit No.281 of 2004(E) and all proceeding arising there from;
"b) A declaration be given for hearing of Ejectment Execution Case No.193 of 2006 arising out of Ejectment Suit No.281 of 2004(E) on merit;
"c) A writ of and/or in the nature of certiorari, do issue calling upon the Respondent No.5 to forthwith transmit to this Hon'ble Court all records relating to Ejectment Suit No.281 of 2004(E) and Ejectment Execution Case No.193 of 2006 so that conscionable justice may be done by quashing and/or set aside the order No.48 dated 6 17.3.2009, passed by the Learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Execution Case No.193 of 2006, arising out of Ejectment Suit No.281 of 2004(E)."
e) During the pendency of this Reference, the West Bengal Act XXXII of 2010 and West Bengal Act XXIX of 2010 have been assented to by the Governor of West Bengal and by virtue of the aforesaid two Amending Acts, it appears that disputes referred to us have lost its relevance. The aforesaid two amending Acts are quoted below:
"Registered No.WB/SC-247 No.WB(Part-III/2010/SAR-33 The Kolkata Gazette Extraordinary Published by Authority ASVINA 28] WEDNESDAY, OCTOBER 20, 2010 [SAKA 1932 PART III-Acts of the West Bengal Legislature.
GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative NOTIFICATION No. 1460-L.-20th October, 2010.-The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:-7
West Bengal Act XXXII of 2010 THE WEST BENGAL PREMISES TENANCY (AMENDMENT) ACT, 2010.
[Passed by the West Bengal Legislature.] [Assent of the Governor was first published in the Kolkata Gazette, Extraordinary, of the 20th October, 2010.] An Act to amend the West Bengal Premises Tenancy Act, 1997.
WHEREAS it is expedient to amend the West Bengal West Ben. Act XXV of 1997.
Land Reforms and Tenancy Tribunal Act, 1997, for the purposes and in the manner hereinafter appearing;
It is hereby enacted in the Sixty-first Year of the Republic of India by the Legislature of West Bengal, as follows:-
1. (1) This Act may be called the West Bengal Land Short title and Reforms and Tenancy Tribunal (Amendment) Act, commence-
ment 2010.
(2) It shall come into force on such date as the State Government may, by notification, appoint.
The West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2010.
(Sections 2, 3.) Amendment
2. In the West Bengal Land Reforms and Tenancy of section 2 of West Tribunal Act, 1997 (hereinafter referred to as the Ben. Act XXV of principal Act), for item (vi) of clause (r) of section 2, 1997.
the following item shall be substituted:-
"(vi) the West Bengal Premises Tenancy Act, West Ben. Act 1997 (only against final order of the XXXVII of 1997. 8
Controller);"
Validation. 3. The amendment made in the principal Act by section 2 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken or purported to have been taken or done under the principal Act on or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgment, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time.
By order of the Governor, K. Y. S. MANHAS, Pr. Secy.-in-charge to the Govt. of West Bengal, Law Department."
"Registered No.WB/SC-247 No.WB(Part-III/2010/SAR-29 The Kolkata Gazette Extraordinary Published by Authority ASVINA 13] TUESDAY, OCTOBER 5, 2010 [SAKA 1932 PART III-Acts of the West Bengal Legislature. 9
GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative NOTIFICATION No. 1415-L.-5th October, 2010.-The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:-
West Bengal Act XXIX of 2010 THE WEST BENGAL PREMISES TENANCY (AMENDMENT) ACT, 2010.
[Passed by the West Bengal Legislature.] [Assent of the Governor was first published in the Kolkata Gazette, Extraordinary, of the 5th October, 2010.] An Act to amend the West Bengal Premises Tenancy Act, 1997.
WHEREAS it is expedient to amend the West Bengal West Ben. Act XXXVII of 1997.
Premises Tenancy Act, 1997, for the purposes and in the manner hereinafter appearing;
It is hereby enacted in the Sixty-first Year of the Republic of India, by the Legislature of West Bengal, as follows:-
1. (1) This Act may be called the West Bengal Premises Short title Tenancy (Amendment) Act, 2010.
and commence (2) It shall come into force on such date as the State ment Government may, by notification, appoint.
The West Bengal Premises Tenancy (Amendment) Act, 2010.
(Sections 2-4.)
2. To section 39 of the West Bengal Premises Tenancy Amendment of section Act, 1997 (hereinafter referred to as the principal 39 of West Act), the following Explanation shall be added:- 10
Ben. Act XXXVII of 1997 "Explanation.- For the removal of doubt, it is hereby
declared that the proceeding under this section means a proceeding which relates to fixation of fair rent in relation to any premises to which this Act applies and includes an application for execution and any other proceeding whatsoever which the Controller is empowered to decide under section 35, section 36, section 37 or other sections of the Act but does not include a suit or proceeding under section 6, section 7, section 9 or section 11 of the Act.".
3. After section 43 of the principal Act, the following Insertion of section shall be inserted:-
new section 5 of 1908.
43A.The procedure for filing an appeal against decree 43A.
"Appeal, revision or final order of Civil Judge, and the powers to and review against be exercised and the procedure to be followed in decree or final order admitting and dealing with such appeal, shall be of Civil Judge. the same as in case of appeals under the Code of Civil Procedure, 1908. In case of revision and review against any decree or final order of Civil Judge, the provisions of the Code of Civil Procedure, 1908, mutatis mutandis, apply."
4. The amendments made in the principal Act by Validation. section 2 and section 3 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken or purported to have been taken or done under the principal Act on or after the said date and before the commencement of this Act, shall, notwithstanding 11 anything contrary contained in any judgment, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time.
By order of the Governor, K. Y. S. MANHAS, Pr. Secy.-in-charge to the Govt. of West Bengal, Law Department."
In our opinion, in view of the aforesaid Amending Acts of the West Bengal Legislature, the basis of or the reasons given in the judgment impugned in the writ-application has lost its force and in view of the aforesaid provisions of the Amending Acts which have been given retrospective operation, it is apparent that the learned Court below has been invested with jurisdiction with retrospective effect and as such, the order impugned should be set aside and the learned Executing Court should be entitled to proceed with the execution case by virtue of the aforesaid amended provision of law.
Mr. Bagchi, the learned advocate appearing on behalf of the respondent, however, has strenuously contended before us that as the main writ-application has been placed before us, we should dismiss the writ-application as not maintainable before observing anything on merit of the order impugned. The sum and substance of the contention of Mr. Bagchi is that no writ-application under 12 Article 226 of the Constitution of India is maintainable against an order passed by a Civil Court and that too, in a dispute between two private individuals and thus, we should dismiss this application as not maintainable. In our opinion, there is no force in the aforesaid contention of Mr. Bagchi for the simple reason that the law is now well settled that if a Civil Court refuses to exercise jurisdiction on a wrong impression that it has no jurisdiction or exercises a jurisdiction where it has no such jurisdiction, a writ-application is maintainable even against the order of the Civil Court and a writ-court should issue a writ in the nature of certiorari. Now that by the amending provisions, the jurisdiction has been conferred upon the concerned Civil Court with retrospective effect, in our view, there is no bar in setting aside the order passed by the learned Executing Court on the basis of the aforesaid amendment with a direction upon the Executing Court to proceed with the execution in accordance with law.
Mr. Bagchi, in this connection, placed reliance upon the decision of the Supreme Court in the case of Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 wherein a Division Bench of two judges disputed the correctness of the earlier decision of the Supreme Court in the case of Surya Deb Rai Vs. Ram Chander Rai, reported in (2003) 6 SCC 675 taking a view that even against the order of the Civil Court a writ-application is maintainable under certain circumstances.
In our opinion, so long the view of the earlier decision in the case of Surya Deb Rai (Supra) is not set aside by a Larger Bench the same remains the law of 13 the land notwithstanding the fact that subsequent decision of a co-ordinate Bench of Supreme Court has taken a contrary view.
Moreover, when the writ-application itself has been assigned to this Bench by the Hon'ble Chief Justice for decision, we can treat this writ-application as one under Article 227 of the Constitution of India and set aside the order passed by the learned Executing Court even if it is assumed for the sake of argument that a writ-application under Article 226 of the Constitution of India is not maintainable. Thus, the point raised by Mr. Bagchi, is of no avail to his client.
We, therefore, dispose of this writ-application by setting aside the order passed by the Executing Court in view of the aforesaid amended provision of the West Bengal Premises Tenancy Act and direct the Executing Court to proceed in accordance with the amended provision.
The reference is, thus, disposed of in terms of the above order. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) We agree.
14(Tapan Kumar Dutt, J.) (Prasenjit Mandal, J.)