Calcutta High Court
Smt. Bimala Devi Agarwal & Anr vs Union Of India & Ors on 9 July, 2008
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
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APOT No. 191 of 2008
APO No. 141 of 2008
G.A. No. 2027 of 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ/Civil Appellate/Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SMT. BIMALA DEVI AGARWAL & ANR Plaintiff/Petitioner/Applicant
Versus
UNION OF INDIA & ORS Defendant/Respondent
For Plaintiff/Petitioner : MR. MILAN BHATTACHARJEE LD.ADVOCATE
For Defendant/Respondent : MR. S. CHATTERJEE & MRS. A. SENGUPTA, LD
ADVOCATE
BEFORE:
The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE
Date : 9th July, 2008.
The Court(Oral) :- We have heard learned Counsel for the parties. We have also perused
the order passed by the learned Trial Court. A perusal of the order shows that earlier also
the present writ petitioner had filed a writ petition no. 2130 of 2003. In the aforesaid writ
petition the petitioner claimed the identical reliefs as contained in the present writ petition.
The aforesaid writ petition was dismissed on 17.11.2003 by the learned Single Judge by
passing the following order:-
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"The Court : In my view, the writ application is not maintainable. The bank is a
premises tenant under the petitioner. It is alleged that the bank is not complying with the
terms of the agreement; only because the tenant is an authority within the meaning of Article
12 of the Constitution of India, it cannot be said that a writ applications maintainable by the
landlord against the tenant for enforcement of the tenancy agreement. If the petitioner has
any grievance, he can approach before the appropriate forum in accordance with law. It is
not possible for me sitting in a Writ Court to adjudicate whether the terms contained in the
agreement entered into by and between the landlord and the tenant have been violated by
the tenant or not. It is not possible for me to embark upon investigation on such disputed
questions.
The writ application is, thus, dismissed.
However, rejection of this application will not prevent the petitioner to initiate
appropriate proceedings before the appropriate forum in accordance with law.
No costs."
Although specific opportunity had been granted to the appellant to initiate
proceedings before the appropriate forum in accordance with law, no such proceedings were,
in fact, initiated. However, the present writ petition being writ petition no. 915 of 2007 was
again filed in this Court. When the matter came up for hearing before the Trial Court, the
writ petition had been dismissed on 15th April, 2008 with the following observations :
"A comparative study of the reliefs claimed in the earlier writ petition and in the
present writ petition, as extracted above, would clearly reveal that though its form is
different but in substance they are the same. It would appear from a bare perusal of the
order passed on 17th November, 2003 that the Court was of the clear view that terms and
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conditions of a tenancy agreement cannot be enforced by a Court of Writ even if one of the
parties to the agreement is an Article 12 Authority. What was denied to the petitioner on the
earlier occasion has been sought to be reagitated before this Court four years after the
dismissal of the earlier petition. In the further considered view of this Court, learned
Counsel for the bank is correct in his submission that the present petition is barred by res
judicata.
Although this Court has noted with some anguish that the impugned action of the
respondent bank if tested on the touchstone of fairness and non-arbitrariness may not
succeed, but having regard to the earlier order of this Court no relief can be granted to the
petitioners on this petition.
The writ petition stands dismissed with liberty to the petitioners to pursue their
channel of civil litigation."
Hence the present appeal. Learned Counsel for the appellant submits that in view of
the ratio of law laid down in the case of B.L. Chakraborty vs. State of West Bengal & Ors.
reported in (2005) 12 SCC 148 it can no longer be held that the writ petition in the present
case would not be maintainable.
On the other hand, learned Counsel for the respondent Bank submits that the
aforesaid judgment of the Supreme Court is not a general statement of law. The judgment
was rendered only in the peculiar facts of the case. It was a direction given by the Supreme
Court under Article 142 of the Constitution of India to do complete justice between the
parties. This was necessitated due to long pendency of the dispute between the parties,
which related to the fixation of rent and consequent quantum of arrears. Learned Counsel
further submitted that the writ petition would not be maintainable as an alternative remedy
was available. He relies on the judgment of the Supreme Court recently in the case of
C.C.T. Orissa v. Indian Explosives Ltd reported in AIR 2008 SC 1631.
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We have considered the submissions made by the learned Counsel for the parties.
We have also perused the pleadings. We are of the considered opinion that the earlier writ
petition having been dismissed by this Court between the same parties cannot possibly be
permitted to be re-agitated in a fresh writ petition. It is noteworthy that the writ petitioner
did not challenge the order of the Trial Court passed in writ petition no. 2130 of 2003
whereby the writ petition had been dismissed on a number of grounds.
A perusal of the order passed by the Trial Court on 17th November, 2003 would
show that the writ petition was held to be not maintainable at the instance of the landlord
against the tenant for enforcement of the tenancy agreement. Secondly, it was held that in
case the landlord had any grievance, he could approach before the appropriate forum in
accordance with law. In other words, it was held that the landlord had efficacious
alternative remedy available. Therefore, it would not be appropriate to entertain the writ
petition unless some exceptional circumstances were pointed out. Thirdly, it was observed
that the Court exercising jurisdiction under Article 226 of the Constitution of India normally
would not adjudicate whether the terms contained in the agreement have been violated by
the tenant or not. It was, therefore, held that it would not be possible to embark upon the
investigation of disputed questions of fact.
These observations make it clear that the earlier writ petition was dismissed on a
number of grounds. The petitioner cannot now be permitted to re-open the same issue by
filing the present writ petition. We may notice here the reliefs claimed in the writ petition
no. 2130 of 2003 in juxta-position with the relief claimed in the present writ petition.
The reliefs claimed in the writ petition no. 2130 of 2003 are as follows:-
"a) i) to act and or proceed in accordance with law in view of the agreement
executed in the year 1987 between the parties.
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iii) To forthwith consider and settled the dispute by executing a fresh tenancy
Agreement giving in an effect from the year 1992 not from the year 2001 and further upon
giving effect to the clauses written in the said Agreement paying head in respect to the
legitimate dues of the petitioner including rent by virtue of the draft Lease Deed by giving an
effect from the year 1992 not from the year 2002 by giving effect to the clauses of the same
as provided in the draft Lease Deed prepared by the Bank on the basis of representation
dated 15.10.2001.
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d) Rule be issued calling upon the banking authorities to execute fresh agreement upon giving effect from 1992 and if no cause or insufficient cause is shown the Rule be made absolute."
In the present writ petition the reliefs claimed are as follows :
"a)(I) to act and/or to proceed in accordance with law by fixing the rent as per market value and make calculation of arrear rent and payment thereof from the year 1992 up to July, 2007 in view of the agreement and/or contract made between the parties dated 15.10.1987 and further make payment of interest @ 12% per annum;
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e) Rule be issued calling upon the Banking Authorities/respondents to execute fresh contract and/or agreement upon giving effect from 1992 by fixing the rent as per market value and if no cause or sufficient cause be shown rule be made absolute;
f) An order be passed directing the Banking Authorities and each of their officers, agents and assigns not to give an effect to the 'Draft Lease Deed' but to prepare a fresh 'Draft Lease Deed' forthwith with effect from 1992 not with effect from 2002 in continuation 6 to the contract and its terms executed among the parties in the year 1987 on the selfsame terms and conditions as stipulated therein so that conscionable justice to be rendered to the parties."
In our opinion, taking into account the consideration the identical nature of relief contained in the two writ petitions, the Trial Court has correctly come to the conclusion that the writ petition would be barred by principles analogous to res judicata.
We are also of the considered opinion that the judgment relied upon in the case of B.L. Chakraborty (supra) cannot be interpreted in such a way as to conclude that writ petition would be the appropriate remedy in all cases even where efficacious alternative remedy is available. In fact, a perusal of paragraph 3 of the judgment would make it amply clear that the Supreme Court did not go into the technicality "whether a dispute originating from a contract would be heard and decide in exercise of writ jurisdiction." The direction was issued "primarily with a view to put an end to a long pending dispute" between the parties. Therefore, the High Court was directed to hear the writ petition and to determine the dispute finally. Such was the anxiety of the Supreme Court that a further direction was issued to the High Court, as follows :-
"If the learned Judge of the High Court feels that any evidence is required to be adduced, then the High Court may have the same recorded by appointing either a Commissioner or by directing any of the Courts or authorities subordinate to the High Court to record the evidence along with its finding and certify the same to the High Court which will take the decision."
These were clearly directions issued in the facts and circumstances of the matter before the Supreme Court under Article 142 of the Constitution. The question as to whether a dispute originating from a contract can be heard and decided in exercise of writ 7 jurisdiction, was not considered. Therefore, the direction issued by the Supreme Court in the peculiar circumstances of that case would not lead to the conclusion, as is sought to be projected by the learned counsel for the appellant, that a writ petition would be maintainable in cases of long pending disputes between the parties. It is a settled proposition of law that the words used in the judgment are not to be reconstrued as if they are words in a legislative enactment. The observations made in the judgment must be read in the context in which they are made. This proposition was clearly laid down by the Supreme Court in the case of Sreenivasa General Traders vs. State of A.P., reported in AIR 1983 SC 1246. Therein it was observed by Hon'ble Mr. Justice Sen as follows :-
"With utmost respect, these observations of the learned judge are not to be read as Euclid's theorems, not as provisions of the statute. These observations must be read in the context in which they appear".
These observations were relied upon by the Supreme Court in the case of M/s. Amar Nath Om Prakash & Ors., vs. State of Punjab & Ors., reported in AIR 1985 SC 218. Therein the proposition of law is laid down as follows :-
"We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define, Judges interpret statutes, they do not interpret judgments. They interpret words of statutes: their words are not to be interpreted as statutes".8
In this judgment the Supreme Court has quoted with approval some observations made by the Courts in England laying down the principles to be followed while interpreting the observations made in a judgment as follows :-
"In London on Graving Dock Co. Ltd. v. Horton, 1951 AC 737 at P.761, Lord Mac Dermot observed :
'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes. J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.' In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294. Lord Reid said, "Lord Atkin's speech........ is not to be treated as if it was a statutory definition. It will require qualification in new circumstances." Megarry. J. in (1971) 1 WLR 1062 observed : "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said :
'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case'."
Therefore, the observations in the case of B.L. Chakraborty (supra), in our opinion, are of no assistance to the appellant in the present case.
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We are unable to accept the submission made by the learned Counsel for the respondent that the Supreme Court in the case of C.C.T. Orissa (supra) has laid down the principle that a writ petition would not be maintainable. Perusal of the aforesaid judgment would show that judgment of the High Court was delivered on a variety of reasons. In the judgment the Supreme Court has observed as follows:-
"3. Learned counsel for the appellant submitted that the High Court ought not to have entertained the writ petition more particularly when for the assessment year 1997-98 and 1998-99 another Division Bench in Writ Petition Nos. OJC Nos. 16928 of 1998 and 1500 of 2000 had rejected the stand of the assessee. Though it was brought to the notice of the High Court that such is the position, unfortunately the High Court did not even refer to the said decision."
"4. it is pointed out that in the counter affidavit filed before the High Court, at para 9, specific reference has been made to the judgment dated 9-10-2001 that in the aforesaid two writ petitions similar stand had been rejected.
5. It is pointed out that this Court in ICI India Ltd. v. State of Orissa (2007(100)SCR 433) has upheld the view expressed by the High Court in OJC NOs. 16928 of 1998 and 1500 of 2000.
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7. The High Court seems to have completely lost sight of the parameters highlighted by this Court in a large number of cases relating to exhaustion of alternative remedy. Additionally the High Court did not even refer to the judgment of another Division Bench for the assessment years, 1997-98 and Assessment years 1998-99 in respect of ICI India Ltd. In any event the High Court ought to have referred to the ratio of the decision in the said case. That judicial discipline has not been adhered to. Looked at from any angle, the High Court's judgment s indefensible and is set aside."10
These observations have been made in response to the submission made by the Counsel for the respondent that disputed question of facts arise for decision which can be adjudicated by the authorities under the Act and the High Court should not exercise power under Article 226 of the Constitution of India.
For the aforesaid reasons, we are of the considered opinion that the judgment of the learned Single Judge does not call for any interference.
We, therefore, dismiss both the appeal and application with the above observation. All parties concerned are to act on a signed copy of the minutes of this order on the usual undertakings.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SURINDER SINGH NIJJAR,CJ.) (PINAKI CHANDRA GHOSE, J.) dg/