Calcutta High Court
Damodar Valley Corporation vs Mrityunjoy Basu And Ors. on 8 December, 1994
Equivalent citations: (1995)1CALLT275(HC)
JUDGMENT Bhagabati Prasad Banerjee, J.
1. This is an appeal against the order dated 23.6.92 as well as the orders dated 15.7.92 and 20.7.92. The writ application was disposed, of by the learned Trial Judge by the order dated 23.6.92. The said order reads as follows :
"By consent of the parties, there shall be an order to the following effect :
The concerned Rent Controller having territorial jurisdiction over premises No. 10, Belvedere Road, Alipore, Calcutta-27 shall fix the rent of the said premises, being totally uninfluenced by the provisions of the statute. In order to determine the rent in terms of this order, the Rent Controller shall afford an opportunity of hearing to the parties to adduce documentary evidence, if any, before him. The Rent Controller shall also take into consideration the rent in the adjoining premises or premises in the vicinity for the purpose of assessment of rent. The rent so ascertained shall also include the service charge and the maintenance charges. The Municipal rates shall also have to be taken into account in the matter of fixation of such a rent. The parties, however, would be at liberty to make written submission before the Rent Controller. In the event the Rent Controller comes to a conclusion as to variations in the rate of rent for specified periods, it is desired that the Rent Controller should also indicate such a variation in the rate of rent in his report.
Since the issue of determination of rent of the concerned premises is pending for quite some time, it is desired that the Rent Controller should deal with the matter and file his report before this court with utmost expedition and preferably within a period of five weeks from the date hereof.
It is recorded that all the parties appearing today including Mr. Das's client, Mr. Mitra's client and Mr. Lahiri's client agree to abide by the decision of the Rent Controller regarding the assessment of rent.
Let this, matter appear in the list six weeks hence marked 'for orders'.
All parties including the concerned Rent Controller are to act on a signed copy of this dictated order on the usual undertaking."
2. Thereafter, an application was filed by the appellant alleging that the said order had not been passed by consent but in the order it has been wrongly recorded that the order was passed by consent and in connection with that order an application for stay was filed and by the order dated 20.7.92 the said application was disposed of by the following order :
"Mr. N. C. Roy Choudhury with Mr. A. Lahiri appear and submits. Mr. Jayanta Mitra with Mr. D. P. Adhikari appear and submit. Mr. P. K. Das with Mr. Tilok Basu appear and submit.
The Court : Affidavit-in-Reply is to be filed as prayed by Mr. Roy Choudhury by next Monday, let the matter appear on Tuesday next i.e. 28.7.92.
"Stay of operation of the order dated 23.6.1992 prayed for but such prayer is refused.
There will be no order of stay more so because of the reason that the order has been as consent order and all the parties were represented by lawyers and also with the respective clients representative at the time of passing such order."
3. It is not necessary for us to go into the facts in details. A writ application was filed by the Opposite Party Mrityunjoy Basu, who was a Receiver, in respect of the property praying for a declaration that the DVC was bound by the principle of promissory estoppel to renew the tenancy agreement and also to execute the renewal agreement with the writ petitioner as well as for a direction upon the appellant DVC to make payment rent on calculation as detailed in paragraph 23 of the writ petition. The said writ application was disposed of by the order dated 23.6.92 as stated above.
4. In this appeal Mr. S. C. Bose, the learned counsel appearing on behalf of the appellant, submitted that the said order was not passed by consent and further it was submitted that even assuming that the said order could be passed by consent but the consent order in so far as direction was given to the Rent Controller to fix rent of the premises "being totally uninfluenced by the provisions of the statute" was illegal and inoperative. Mr. Bose submits that the Writ Court cannot direct the Rent Controller who is a creature of the West Bengal Premises Tenancy Act and who is appointed under Section 26 of the W.B.P.T. Act, 1956 is only required to discharge the powers and functions in accordance with the provisions of that Act. It is submitted that the Rent Controller on the basis of the application filed by the parties can fix up fair rent and/or revise the fair rent but that has to be done on the basis of certain principles and in accordance with the provisions and the spirit of the Act but no statutory authority can be directed by the Court to act ignoring the statutory provisions contained in the Act. It was further submitted that by consent of parties the Court cannot allow an authority to act superseding and/or ignoring the statutory provisions or in other words to act against the provisions of law. Nextly, it was submitted by Mr. Boss that the writ application for the purpose of adjudication of the private disputes between the landlord and tenant with regard to entering into an agreement and/or fixing or enhancing of rent cannot be entertained by the Writ Court inasmuch as the writ jurisdiction is meant for public law remedy and not for private remedies. The forum for obtaining private remedies is a suit or proceeding that may be initiated under the relevant Act and not by the Writ Court. The question which was raised in the writ application could not be decided as the same was primarily and mainly questions of fact and/or assessment of rent which requires taking of evidence and examination of documents and records. This function could not be exercised by the Writ Court.
5. Mr. S.K. Gupta, the learned counsel appearing on behalf of the respondent-writ petitioner, submitted that the general principle is that everyone has a right to waive and to agree to waive the advantage of a law or a rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy and in support of the contention reliance was made to the decision of the Supreme Court in the case of Lachoo Mal v. Radhesyam . It was further submitted by Mr. Gupta that in the instant case no appeal could be entertained against an order passed by consent. When an order is passed by consent a party cannot be aggrieved by such order of consent and, thirdly, it was submitted that this technical objection with regard to the maintainability of the writ application was not, taken at the initial stage and if it had been taken in that event a party could avail of other remedies but the matter is pending in this Court since 1986 and at this stage a party should not be left without any remedy.
6. The question, whether an order is passed by consent or not is a matter which could not be decided by us. When in the order it has been recorded that the order has been passed by consent of parties we cannot go into the question of correctness of such recording in the order. Inasmuch as, it is entirely within the jurisdiction of the learned Trial Judge who had recorded such statement which could not be challenged by the parties and decided by the Division Bench on an appeal. So, we have to proceed on the footing that the said order was passed by consent.
7. Now, the question is whether the party may agree that the Rent Controller having territorial jurisdiction in respect of the premises in question should fix the rent of the said premises "being totally uninfluenced by the provisions of the statute", viz. W.B.P.T. Act, 1956. It is well-settled principle that the parties by consent cannot over-ride a provision of a statute.
8. There cannot be any estoppel or waiver of any statutory provision. Parties voluntarily may agree to waive any specific right or advantage of law or rule which is made solely for the benefit of protection of individual. There may be cases where a party may waive service of notice which is a mandatory requirement by voluntarily appearing and waiving such notice. But in the instant case the Rent Controller is appointed under Section 26 of the Act of 1956 for the purpose of exercising powers and discharge duties of the Controller in accordance with the provisions of the Act in such an area or the part as authorised. Section 10 of the Act provides that the Rent Controller shall, on an application made to it either by landlord or by tenant in the prescribed manner, fix in respect of any premises the fair rent referred to in Section 8 or increase the rent, if any, referred to in Section 9 of the Act. Section 11 of the said Act also provides power to revise the fair rent. Rule 3 of the Act provides the manner of making an application under Sections 10 and 11 of the said Act. Any order passed under Sections 10 or 11 of the said Act is also subject to judicial review by the higher Courts.
9. We are unable to accept the contention that by the order of the learned Trial Judge the Rent Controller could be directed to discharge the function as a persona designata in view of the fact that the Rent Controller when he has to discharge any power and function in relation to fixation of rent he has to do it in accordance with the provisions of the Act as he is nothing but a creature of the statute. In our view, a creature of a statute cannot be asked to discharge any powers and functions contrary to and/or ignoring the provisions of the Act. Secondly, even assuming that the writ application is maintainable in respect of the subject matter which was pending in the writ application the Writ Court could only direct a statutory authority to discharge its powers and functions and/or obligations imposed by the statute if it is brought to the notice of Court that such an authority has failed to discharge its powers, functions and obligations under the law in respect of any of the rights of the citizen and when a citizen's rights have been violated because of the inaction on the part of the statutory authority concerned. In our view, if the Court cannot pass any order of the nature then by consent of the parties the Court cannot allow the order to be recorded which order the Court could not pass in the usual way. Order 23 of the Code of Civil Procedure may not be strictly applicable but the Court cannot ignore such a general principle as laid down under the law that even a compromise decree has to satisfy the statutory requirements or in other words a party cannot enter into compromise which is in respect of a matter contrary to law or in other words the provisions of the law cannot be made nugatory by consent of parties. A party may voluntarily agree but the Court, before allowing a consent order to be recorded, it is the duty on the part of the Court to satisfy that such a compromise is not contrary to law and/or contrary to public policy. It is the duty on the part of the Court to satisfy that the compromise order satisfies the statutory requirements and such consent order is not opposed to any law, inasmuch as, the Court cannot direct to do a thing which is contrary to law.
10. In that view of the matter, even assuming that the order impugned was passed by consent but the said order cannot be allowed to stand as the consent order on the face of it purports to direct the Rent Controller to act contrary to and/or inconsistent with and/or de hors the statute in question under which he has been created. The Controller being a creature of the Statute cannot be called upon to discharge a function de hors the statute. This is contrary to legal principle.
11. (Accordingly, the order dated 23.6.92 cannot be allowed to stand. In that view of the matter, the order dated 23.6.92 is set aside and the matter is remanded back to the learned Trial Judge for a fresh determination in accordance with law. The appeal is thus, allowed to the extent indicated above. There will be no order as to costs.
12. All parties concerned are to act on a signed copy of the operative part of this judgment and order on the usual undertaking.
J.K. Mathur, J.
13. I agree.