Form No.J. (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon’ble Justice Pratap Kumar Ray
&
The Hon’ble Justice Harish Tandon
CO. LRT. No. 2 of 2010.
Seema Begum & Anr.
-vsMarium Bibi & Ors.
For the petitioners
: Mr. Ashok Banerjee
Mr. Biswanath Mitra
Mr. D. Mukherjee
Mr. Subhadeep Mukherjee
For the Opposite Party
: Mr. Priyabrata Mukherjee
Mr. Md. Mohiuddin
Mr. Murari Chakraborty
Mr. Nayeemuddin Munshi
th
Judgment on : 14 February, 2011
HARISH TANDON, J.:
A vital and interesting question has cropped up before us in the instant tribunal
application as to the competence of the Land Reforms Tenancy Tribunal constituted
under West Bengal Land Reforms and Tenancy Tribunal Act (hereinafter referred to
as the Tenancy Tribunal Act) under Article 323(B) of the Constitution of India to
deal, entertain and/or set aside the orders, decrees and judgments passed by the
“Civil Judge having jurisdiction” in respect of the subject matter under the “Specified
Act” as defined under section 2(r) of the West Bengal Land Reforms and Tenancy
Tribunal Act 1997.
Initially when the said Tenancy Tribunal Act was promulgated it was made
applicable in respect of five Acts. Those are the West Bengal Estate Acquisition Act
1953, the West Bengal Land Reforms Act 1955, the West Bengal Acquisition of
Homestead Land for Agricultural Labourers, Artisans and Fisherman Act 1975 and
the West Bengal Land Holding Revenue Act 1979. By an amendment Act, the said
West Bengal Land Holding Revenue Act 1979 was omitted and/or deleted from the
definition of the said “Specified Act”. By another amendment the West Bengal
Restoration of Alienated Land Act 1973, the West Bengal Premises Tenancy Act
1977 and the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001
was inserted. Thus the said Tenancy Tribunal Act within its contour assumes powers
in respect of the subject matter relating to the “Specified Act” as defined under
section 2(r) of the said Tenancy Tribunal Act.
There was no difficulty while the West Bengal Premises Tenancy Act 1956
was operative and in vogue. The said Act of 1956 postulates that the matters relating
to the eviction shall be dealt by a court within the meaning of the Bengal, Agra and
Assam Civil Courts Act 1887. Section 3 of Bengal, Agra and Assam Civil Courts Act
1887 defines the classes of Civil Court namely the Court of the District Judge, the
Court of the Additional Judge, the Court of the Civil Judge (Senior Division) and the
Court of the Civil Judge (Junior Division). The said Act also provides the court
empowered to entertain the appeal from the judgment and decree and/or order of the
court inferior to it.
A radical change was made by enacting the West Bengal Premises Tenancy
Act 1997 which repealed the said West Bengal Premises Tenancy Act 1956. The
object and purpose for which such Act of 1997 was enacted to give a speedy disposal
of the pending litigations and also conferring all the powers upon the Rent Controller
or Additional Rent Controller to deal with the matter including the matter relating to
the eviction of a tenant by a landlord, fixation of the fair rent, revision of the fair rent,
restoration of the essential services. The appeal against orders passed by the Rent
Controller or the Additional Rent Controller, as the case may be, was conferred upon
the Tenancy Tribunal Act 1997 so as to minimize the burden of the Civil Court and
to achieve the speedy disposal of the litigations.
The legislature thereafter by a notification appointed the judge of a Civil Court
as Controller and/or Additional Controller not by virtue of their office but as persona
designata i.e. by name. By further amendment brought in by West Bengal Act of
2002 the word ‘controller’ appearing in section 6 and 7 of the said Act of 1997 was
deleted and was replaced and/or substituted by the word “Civil Judge having
jurisdiction”. However, section 43 of the said Act of 1997 whereby a conferment is
made upon the Tenancy Tribunal as an Appellate Tribunal was unamended and still
reads thus :
“43. Appeal, revision and review. – (1) an appeal shall lie from a final order
of the Controller to such Tribunal as the State Legislature may, by law, provide :
Provided that until a Tribunal is so provided, an appeal from the final order of
he Controller shall lie to the high court.
(2) An appeal shall be final within 30 days from the date of order of the
Controller.
(3) The Controller or the Tribunal shall in dealing with proceedings under this
Act be deemed to be a court for the exercise of powers under section 151 or section
152 of, or Order XLVII of the First Schedule to, the Code of Civil Procedure, 1908 (5
of 1908).
(4) The Controller or the Tribunal shall in dealing with the proceedings under
this Act follow such procedure as may be prescribed.
(5) Every proceeding before the Controller or the Tribunal shall be deemed to
be a judicial proceeding within the meaning of section 175, section 193 and section
228 of the Indian Penal Code (45 of 1860).
(6) The Controller or the Tribunal shall be deemed to be a court for the
purpose of section 195 of the Code of Criminal Procedure, 1973 (2 of 1974).
(7) The Controller shall be deemed to be a public servant within the meaning
of section 21 of the Indian Penal Code.”
On a bare perusal of the said section there is no doubt that the order passed by
the Controller or the Additional Controller, as the case may be, is amenable to be
challenged before the Appellate Tribunal i.e. Tenancy Tribunal constituted under the
Tenancy Tribunal Act 1997 but the question still abegging a decision as to whether
an appeal lies to Tenancy Tribunal against an order passed by the “Civil Judge
having jurisdiction” in respect of a subject matter coming within the purview of
anyone of the “Specified Act” as defined in section 2(r) of the Tenancy Tribunal Act
1997.
There is a divergence of opinion on such issue of this court which we shall
deal later while deciding the issue in its true perspective.
One of us (Pratap Kumar Ray, J) had occasion to deal with a similar point
and/or question but the subject matter involved therein relates to a matter coming
within the ambit of West Bengal Land Reforms Act 1955.
Almost a similar question was poised before the said Hon’ble Judge whether
the District Judge being an appellate officer within the meaning of section 9 of the
West Bengal Land Reforms Act 1955 ( hereinafter referred to as the Act of 1955) is
acting as persona designata or as a court within the meaning of Bengal, Agra and
Assam Civil Courts Act 1887 and General Clauses Act. In other words whether the
District Judge acts as an authority within the definition of “authority” as
contemplated under section 2 (b) of the Tenancy Tribunal Act 1997 and thus
amenable to the jurisdiction of the Tenancy Tribunal Act 1997.
His Lordship in a case of Sk. Samsul Huda & Ors. Vs. Mosharaf Hussian
& Ors. reported in 2002 WBLR (Cal) 654 considered the various judgments of the
different High Courts as well as our court and came to a conclusion that the District
Judge cannot act as persona designata but is a court and thus an appeal or revision
lies under the provisions of the Code of Civil Procedure and not to the Tenancy
Tribunal Act.
The word “authority” as defined under the Tenancy Tribunal Act 1997 reads :
“(b) ‘authority’ means an officer or authority or functionary exercising powers or
discharging functions as such under the Specified Act”.
Normally the source of powers to deal with the matter by the authority
emanates from its appointment under the Specified Act but a Civil Judge or the
District Judge or the Munsif, as the case may be, comprising the court discharges its
powers judicially and thus cannot be termed as an officer or authority or functionary
under the specified Act.
However, another Division Bench in a case of Pashupati Adhikary Vs.
Pradyut Kumar @ Tarapada Adhikary reported in 2003(4) CHN 347 considered
the power, jurisdiction and competence of the Tribunal to entertain an appeal agiainst
an order passed by the Civil Judge, be it a Munsif or a District Judge or a Civil
Judge. Their Lordships while defining an authority as envisaged under section 2(b)
of the Tenancy Tribunal Act were pleased to observe :
“15. In the background of the provisions of both these Acts, now we will advert
to the present case. If we confine ourselves to the provisions of the Act of 1997 then
any matter arising out of the Act of 1955 is concerned, then any order passed by the
authority under that Act, the jurisdiction of all Civil Courts shall remain excluded
except the writ jurisdiction of High Court under Articles 226 and 227 of the
Constitution exercisable by a Division Bench and all orders passed under that Act
shall be subject to the order of the Tribunal. But the complication arises because of
the fact that under section 9 of the Act of 1955, as far as pre-emption matters are
concerned, jurisdiction to try such cases has been conferred on the ‘Munsif’ as the
trial court and appellate power has been conferred on the District Judge. Therefore,
both the authorities, i.e., ‘Munsif” as well as ‘District Judge’ are not the revenue
authority while deciding the question of pre-emption under section 9 of the Act of
1955. Both these authorities are Judicial Authorities appointed under Bengal, Agra
and Assam Civil Courts Act, 1887 and they are exercising their power as Judicial
authority and not as Revenue Authority.
Learned Counsel for the private
respondents has specifically invited our attention to section 2(b) of the Act of 1997,
which defines ‘authority’ which reads as under:
“(b) ‘authority’ means an officer or authority or functionary exercising
powers or discharging functions as such under a specified act.”,
16.
It was contended by the learned Counsel that the ‘Munsif’ or the
‘District Judge’ are not authority under the Act of 1955 or under the Act of 1997,
therefore, they cannot be made subordinate to the Tribunal as this will amount to
interfering with the judicial power under the Constitution. The State Legislature
cannot change the basic structure of he Constitution. Independence of judiciary is
one of he basic structure of the Constitution recognized by the apex court and it is
the settled principle of law in our country. By this Act the State Legislature has
indirectly tried to change the basic structure of the Constitution by bringing the
subordinate judiciary under the control of administrative tribunal constituted under
Article 323B of the Constitution. This is not permissible. ‘Munsif’ and ‘District
Judge’ are not persona designata, they are the courts to whom power of adjudication
was entrusted under the Act of 1955. By giving power to the Judicial Authority to
exercise matters relating to revenue will not change their character from a judicial
officer to that of a revenue officer. They are appointed under Article 233 of the
Constitution and they are not administrative officers so as to become amenable to the
jurisdiction of the Tribunal. Section 2(b) of the Act of 1997, as quoted above, only
defines ‘authority’ to mean an officer or authority or functionary exercising powers
or discharging functions as such under a specified Act. ‘Munsif’ and ‘District Judge’
are not
officers appointed under the Act of 1955 nor are they authority or
functionary exercising power or discharging functions under the Act of 1955, but
they are Judicial Authority adjudicating the rights of the parties under that Act.
Therefore, they do not fall in any of the definitions of ‘authority’ under the Act of
1997 so as to become amenable to the jurisdiction of the Tribunal. Section 6 confers
jurisdiction and power on the authority of the Tribunal, it says that the Tribunal
shall exercise power in relation to any order made by the authority under the
specified Act or an application complaining inaction or culpable negligence of an
authority under a specified Act. Therefore, what it contemplates is that any order
passed by the s authority under the specified act, means a functionary like the
Revenue Authority appointed under the Act of 1955 whose order shall be subject to
the jurisdiction of the Tribunal. The idea behind this is that all the orders which are
passed by the Revenue Authority shall be subject to the decision of the tribunal. But
as mentioned above, ‘Munsif’ or the ‘District Judge’ are not authority under the Act
of 1955. Revenue offices who are appointed under the Act of 1955 and discharging
functions
under that Act, against their order the Tribunal shall exercise its
jurisdiction. Section 2(4) of the Act of 1955 defines ‘Collector’ as “Collector means
the Collector of a district or any other officer appointed by the State Government to
discharge any of the functions of a Collector under this Act” meaning thereby that
one of the functionaries under the Act of 1955 is the ‘Collector’ and he is to be
appointed by the State Government and various powers which has been conferred
under the ‘Act of 1955 are to be discharged by the Collector. Similarly, in section
2(12) of the Act of 1955 defines ‘Revenue Officer’ which reads as under :
“(12) ‘Revenue Officer’ means any officer whom the State Government may
appoint by name or by virtue of his office to discharge any of the functions of a
Revenue Officer in any area”
Their Lordships while dealing with the subject were pleased to hold that the
authority includes such officer or functionary which is for the first time appointed
under the specified Act. Since the Munsif or a District Judge being a Civil Judge is
not appointed under the Specified Act, they cannot be brought within the said
definition of “authority” so as to make amenable to the jurisdiction of the Tenancy
Tribunal. All courts are tribunal but all tribunals are not court.
In a case coming within the purview of the West Bengal Land Reforms Act
1955 prior to an amendment of 1972 the right to adjudicate in respect of preemption
was conferred upon the Revenue Officer appointed under the said Act. Legislature
consciously brought an amendment by West Bengal Land Reforms (amendment) Act
1972
substituting
the
word
“Munsif”
and the “District Judge” in place of revenue authority or officer. There was no
amendment made in the definition clause of authority which remains the same even
after that amendment of 1972. The obvious intention of the legislature was to take
away the powers to adjudicate from the hands of a revenue officer and to confer such
power upon the court for effective and proper adjudication and also appreciation of
the legal questions. The judicial orders passed by the court cannot be subject to a
further scrutiny by a Tribunal against the basic structure of the Constitution.
A reliance was placed upon a judgment of the apex court in a case of State of
West Bengal Vs. Ashish Kumar Roy & Ors reported in (2005) 1 WBLR (SC) 647
that the Tribunal sweeps within its ambit the dispute relating to the Specified Act. In
the said case a challenge was thrown as to the vieres of the said Act as Article 323
B(2)(d) of the Constitution could not vest power upon the Tribunal to decide a
dispute in relation to the Specified Act by taking away the power of the high court
and the other civil courts. The writ application was initially dismissed but the
Division Bench allowed the said appeal and declared certain provisions of the said
Act as ultra vires to the Constitution. The apex court held that the jurisdiction of the
High Court under Article 226 and 227 and that of a Supreme Court under Article 32
could not be totally excluded so long as the Tribunal performs a supplementary role
in discharging the powers conferred on the High Court as well as the Supreme Court.
An argument was advanced therein that the Tribunal should deal only with the laws
for “agrarian reforms” and does not take away the writ jurisdiction of the High Court.
It was further argued therein that the Act like Land Reforms, Thika Tenancy and
Land Holding Revenue does not come within the agrarian reforms and thus cannot be
kept within the definition fo the Specified Act. The apex court discarded such
submission on the premise that the land including the relationship of landlord and
tenant collection of rents, transfer and alienation of agricultural land, land
improvement and agricultural loans are kept in Entry 18 in List II of the seventh
Schedule of the Constitution. The apex court had no occasion to deal with the
questions that from an order passed by a Civil Judge or Munsif or District Judge in
respect of a matter relating to Specified Act, the appeal or revision shall lie to the
Tribunal. It would be profitable to quote the following observation of the apex court :
“27. In the instant case, the Tribunal has been constituted under the West
Bengal Tenancy Tribunal Act and it has been given the jurisdiction to entertain
disputes with regard to the five specified acts. Learned Counsel for the respondents
argues thus : the tribunal contemplated under Article 323B clause (1) read with
clause (2)(d) can only be a tribunal for deciding disputes or matters with respect to
land reforms by way of acquisition of any estate as defined in Articles 31A. Article
31A itself defines the expression ‘estate’ in clause (2). Both Article 31A and the
definition of ‘estate’ in clause (2) of Article 31A have received judicial interpretation
by Constitutional Benches of this court which have uniformly taken the view that the
protection of Article 31A is available only to laws which are intended to carry out
agrarian reforms. The predominant purpose of sub-clause (d) of clause (2) of Article
323B is to constitute a tribunal only with respect to disputes pertaining to laws
carrying out agrarian reforms. Out of the 5 specified Acts, the West Bengal Land
Reforms Act, 1955, the Calcutta Thlika Tenancy (Acquisition and Regulation) Act,
1981 and the West Bengal Land Holding Revenue Act, 1979 have no connection
whatsoever with agrarian reforms. Therefore, the Tribunal constituted to deal with
these acts cannot be a tribunal within the meaning of Article 323B(2)(d) of the
Constitution. Hence, the learned Counsel contends that the impugned Act is not
immune from challenge on the ground of violation of the Constitutional provisions.
28. The argument is unacceptable for three reasons. The first is the fallacious
assumption that in order to be a valid tribunal constituted under Article 323B(1) and
323B(2)(d), the tribunal must necessarily deal with laws for agrarian reforms. In
our view, the reading of the expression ‘estate’ from clause (2) of Article 31A into
Article 323B(2)(d) is only for the purpose of enumeration. Instead of repeating the
entire definition contained in clause (2) of Article 31A in sub-clause (d) of 323B, the
farmers of the Constitution merely indicated that the word ‘estate’ would have the
same meaning as in Article 31A. The reference to the definition of ‘estate’ in Article
31A made in Article 323B(2)(d) serves no other purpose.
29. Secondly, the concept of ‘agrarian reform’ is not confined only to
agriculture or its reform. In the words of Krishna Iyer, J. in his concurring judgment
in State of Kerala & Anr. V. The Gwallor Rayon Silk Mfg(Wvg.) Co. Ltd. Etc., AIR
1973 SC 2734 (para 30):
“30.The concept of agrarian reform is a complex and dynamic one promoting
wider interests than conventional reorganization of the land system or
distribution of land. It is intended to realize the social function of the land
and includes – we are merely giving, by way of illustration, a few familiar
proposals of agrarian reform – creation of economic units of rural
production, establishment of adequate credit system, implementation of
modern production techniques, construction of irrigation systems and
adequate drainage, making available fertilizers, fungicides, herbicides and
other methods of intensifying and increasing agricultural production,
providing readily available means of communication and transportation, to
facilitate proper marketing of the village produce, putting up of silos,
warehouses etc. to the extent necessary for preserving produce and handling
it so as to bring it conveniently within the reach of the consumers when they
need it, training of village youth in modern agricultural practices with a view
to maximizing production and help solve social problems that are found in
elation to the life of the agricultural community. The village man, his welfare,
is the target.”
30. Further, in testing as to whether the law was intended for agrarian reform,
the court is required to look to the substance of the act and not its outward form.
31. Thirdly, the contention also proceeds on a misreading of Article
323B(2)(d). Under clause (1) the State Legislature is empowered to make a law with
regard to entry 18 in List II of the 7th Schedule which reads “Land, that is to say,
right in or over land, land tenures including the relation of landlord and tenant, and
the collection of rents; transfer and alienation of agricultural land; land
improvement and agricultural loans, colonization.” Sub-clause (d) of Article 323B is
not confined to land reforms by acquisitions of estates or extinguishing or
modification of any such rights for the clause ends with the phrase “or in any other
way”, which are wide enough to accommodate any other type of law which is
intended for “land reforms”.
32. We are, therefore, unable to accept the contention of the learned Counsel
that in order to fall within the protection of umbrella of Article 323B the Tribunal
must have been constituted only with regard to disputes arising under any law
intended for agrarian reform. As long as it is a law with respect to “land reforms”,
it is sufficient to fall within the ambit of sub-clause (d) of Clause (2) of Article 323B
of the Constitution.
33. “Agrarian reforms”, itself is a wide concept and we do not see why the
objects attempted to be fulfilled by the specified Acts would not fall within the ambit
of this compendious term. Looking at the preambles and the schemes of the five
specified Acts, we are unable to find fault with the reasoning of the learned Single
Judge that the Tribunal constituted to deal with the disputes arising under the said
specified Acts was very much a Tribunal within the meaning of Article 323B of the
constitution.
34. We, therefore, accept the reasoning of the learned Single Judge and hold
that the learned Single Judge was justified in rejecting the contention that the
Tribunal constituted under the impugned Act was not a Tribunal within the meaning
of Article 323B of the Constitution. There is no merit in the contention.”
Thus the apex court had no occasion to deal with the situation whether the civil
judge “having jurisdiction’ is an “authority” within the meaning of section 2(r) of the
Tenancy Tribunal Act. The point in issue before the apex court was as to the
constitutionality of the said Tenancy Tribunal Act, in other words, the vires of the
said Tenancy Tribunal Act was the matter in issue.
However the said judgment of the apex court (Ashish Kumar Roy) (supra)
was considered and applied by the Division Bench of this court in case of Dipak
Kumar Singh Vs. State of West Bengal & Ors. reported in 2008 (2) CHN 943.
The facts leading to the said judgment was a challenge to a decree for dismissal
passed by the Civil Judge (Jr. Division), Alipore in a suit for eviction under the said
Act of 1997. While deciding the said case the Division Bench at one hand
categorically declined to decide whether an appeal lies against a decree passed by the
Civil Judge in an eviction suit or not but on the other hand ventured to hold that the
Civil Judge is an “authority” within the meaning of the Tenancy Tribunal Act. It is
further observed that in absence of a specific provision for appeal provided under the
said Act of 1997 the jurisdiction of the High Court under Article 226 and 227 of the
Constitution of India is not rulled out but after the promulgation of the Tenancy
Tribunal Act the power of the High Court under Article 226 and 227 of the
Constitution of India excepting the power conferred upon the Division Bench of the
High Court came to be vested upon the Tenancy Tribunal and make such decree
being further tested by the Tribunal passed by the Civil Judge.
The Division Bench expressly overruled the judgment rendered in Pashupati
Adhikary (supra) in view of the pronouncement made by the apex court in case of
Ashish Kumar Roy (supra).
This court in case of Tapas Biswas Vs. Shayama Prasad Ghoshal reported
in (2009) 1 WBLR (Cal) 250 had an occasion to deal with and consider in extenso
and/or elaborately whether the “Civil Judge having jurisdiction” squarely come
within the ambit of “authority” so as to render the decree so passed capable of being
challenged before the Tenancy Tribunal. In the said judgment (Tapas Biswas)
(supra) the Single Judge has an occasion to consider the case of the apex court,
Ashish Kumar Roy (supra) and the judgment delivered by the Division Bench in
case of Dipak Kumar Singh (supra) and also considered the earlier Division Bench
judgment of this court in case of Pashupati Adhikary (supra) and ultimately found
that the apex court in case of Ashish Kumar Roy (supra) was not pointer to an issue
that the Civil Judge is an authority within the meaning of section 2(r) of the Tenancy
Tribunal Act. The subsequent judgement delivered by the Division Bench in case of
Dipak Kumar Singh by applying the judgment of the apex court Ashish Kumar
Roy (supra) did not have any power to overrule the earlier Division Bench judgment
Pashupati Adhikary (supra). This court in case of Tapas Biswas (supra) is a direct
authority on the issue whether the Civil Judge is an authority as defined under the
specified Act and observed as follows :
“51. By those two amendments the jurisdiction of the Controller to pass an
order of eviction on an application made to him by the landlord in the prescribed
manner was taken away and a different forum was created for trial of the eviction
proceeding as indicated above. The provision contained in Section 6 of the said Act
as it stands now makes it clear that the Civil Judge having jurisdiction was vested
with the exclusive power to pass a decree for eviction against a tenant in a suit
instituted by the landlord on any of the grounds as mentioned therein.
52. Even though the provisions of Section 6 of the said Act was successively
amended once in 2005 and thereafter in 2006, but no corresponding amendment was
made in the provision of Section 43 of the said Act. No other provision was also
introduced in the said Act making provision for an appeal against the decree passed
by the Civil Judge having jurisdiction in any forum. As such, the only conclusion,
which can be arrived at by this Court that the decree for eviction passed by the Civil
Judge having jurisdiction in a suit for eviction under Section 6 of the said Act is not
appealable under Section 43 of the said Act.
53. But, in this context, two questions will crop up immediately. Firstly, where
a landlord filed an application for eviction against his tenant before the controller
under section 6 of the said Act before the amendment of 2005 and 2006 came into
operation, then will the tenant lose the right to challenge such a decree before any
appellate forum because of the subsequent amendment? The other question which
will crop up is that if the landlord gets a decree for eviction against his tenant by the
Civil Judge having jurisdiction in a suit under Section 6 of the said Act after the
amendment of 2005 came into operation, then can the tenant challenge the said
decree in appeal before any appellate forum?
54. In fact, if the entire scheme of the West Bengal Premises Tenancy Act,
1956 is considered, then it will be found that even in the said Act no provision was
made for challenging any decree passed in an eviction suit before any forum. As
such, confusion was earlier created as to whether a decree passed in an eviction suit
under Section 13 of the said Act is appealable or not.
The said dispute was
ultimately resolved by a decision of this Hon’ble Court in the case of Ganesh
Chandra Dutta Vs. Chunilal Mondal & Anr. reported in AIR 1972 Calcutta
page 150 wherein it was held that the expression ‘decree’ in the West Bengal
Premises Tenancy Act, 1956 has the same meaning as that of the ‘decree’ as defined
in Section 2(2) of the Code of Civil Procedure. As such, it was held therein that :“Under Section 96 of the Civil Procedure Code save as otherwise
expressly provided in the body of the Code or by any other law for the time
being in force an appeal shall lie from every decree passed by any court
exercising original jurisdiction to the court authorized to here the appeals from
the decision of such courts. There is nothing in the West Bengal Premises
Tenancy Act limiting or affecting such right of appeal against a decree passed
in a suit for recovery of possession”.
55. Accordingly, it was held in the said decision that the order of eviction
passed by the City Civil Court is appealable before the High Court. A confusion may
again arise as the said decision was given in the context of a decree passed by the
City Civil Court inasmuch as Section 8 of the City Civil Court’s Act itself provides
that an appeal shall lie to the High court from every decree passed by the City Civil
Court and sub-section 6 of Section 29 of the West Bengal Premises Tenancy Act
provides that the provision of Civil Procedure shall apply to all suits and proceedings
referred to in Section 20 except suit and proceeding which lie to High Court. If these
two provisions are taken into consideration, then apparently an impression may grow
that only in case of eviction decree passed by the City Civil Court appeal lies to High
Court. But the said confusion may again be removed with reference to the discussion
made in paragraph 5 in the said decision of Ganesh Chandra Vs. Chunilal wherein a
Privy Council decision in Adaikapa Chettiar Vs. Chandra Sekhar Thevar, AIR 1948
Privy Council 12 was relied upon to show that where a legal right is in dispute and
the ordinary courts of the country are seized of such disputes, the courts are governed
by the ordinary rules of procedure applicable thereto and an appeal lies if authorized
by such rules notwithstanding that the legal right arises under a special statue which
does not in terms confer a right of appeal.
56. In fact, the views which were expressed by the Privy Council in the
aforesaid case was reiterated in a subsequent decision of the Hon’ble Supreme Court
in the case of Deepchand & Ors. Vs. Land Acquisiton Officers & Ors. (supra).
57. The significance of the use of the expressions such as “Civil Judge having
jurisdiction,” “suit”, “decree” in the amendments of the West Bengal Premises
Tenancy Act, 1997 in 2005 and in 2006, cannot be lost sight of, inasmuch as these
expressions were all introduced in the said amendments without defining those
expressions in the Act itself. In the absence of any special meaning given to those
expressions by defining them differently in the Act itself, this court will have no
other alternative but to hold that those expressions convey the same meaning with
which we are ordinarily familiar. When the detailed procedure for conduct of such
suits before the Civil Court has not been laid down in the Act itself, this court has no
hesitation to hold that the ordinary rules of procedure which are applicable to the
Civil Suit, are applicable to the suit and/or proceeding under Section 6 of the said Act
before the Civil Judge. As such, the provision relating to appeal and/or the forum of
appeal which is applicable to civil suit before the Civil Court will apply mutatis
mutandis in case of suit for eviction under the said Act.”
The word “decree” has not been defined under the said Act of 1997. It is
settled law that the proceeding before the Civil Court is regulated by the procedure
applicable to such court even a proceeding initiated under the specified Act before
the Civil Judge having jurisdiction is regulated by a procedure which applies in case
of an ordinary proceeding initiated before the said court. There is no dispute that the
Code of Civil Procedure applies and/or regulates the proceedings of the Civil Court.
Thus there is no hesitation in applying the definition “decree” as envisaged in
section 2(2) of the Code which reads “decree means the formal expression of an
adjudication which, so far as regards the Court expressing it conclusively determines
the rights of the parties with regard to or any of the matters in controversy in the suit
and may be either preliminary or final. xxxxxxxxxxxxxxxxxxxxxx.” The Bengal,
Agra and Assam Civil Courts Act 1887 provides an appeal against such decree and
the Forum is also made explicit. Such a decree is susceptible to be challenged to a
Forum which is applicable in case of a regular Civil Suit filed in the said court.
“Judge” has also been defined under section 2(8) of the said Code which
means the Presiding Officer of a Civil Court. Section 3 of the code laid down the
hierarchy of the courts in the order that the district Court is subordinate to the High
Court and every Civil Court of a grade inferior to that of a District Court and every
court of the Small Causes is subordinate to the High Court and District Court.
If we harmoniously read the different provisions as contained in the Code of
Civil Procedure which regulates the proceeding before the Civil Court, the High
Court has been conferred a power over all subordinate courts. Even if the Civil court
discharging functions and/or deciding a matter under the special statute and in
absence of any specific ouster clause or conferment of the right of appeal to a
specific forum the jurisdiction of the superior court to entertain an appeal cannot be
taken away. In this regard reliance may be placed in a case of ITI Ltd. Vs. Siemens
Public Communications Network Ltd. Reported in (2002) 5 SCC 510 where D.M.
Dharmadhikari, J while concurring with the other judge was pleased to observe as
follows :
“18. Power conferred on the High Court under Section 115 of the Code of
Civil Procedure, 1908 over all subordinate courts within its jurisdiction is a
supervisory power and has been distinguished from its power of appeal to correct
errors of fact and law. The power of revision under Section 115 being in the nature
of power of superintendence to keep subordinate courts within the bounds of their
jurisdiction cannot be readily inferred to have been excluded by provisions of a
special Act unless such exclusion is clearly expressed in that Act. The Arbitration
and Conciliation Act of 1996 which is for consideration before us by provision
contained in Section 37(3) of the said Act only takes away the right of second appeal
to the High Court. The remedy of revision under Section 115 of the Code of Civil
Procedure is neither expressly nor impliedly taken away by the said Act.
19. Revisional jurisdiction of a superior court cannot be taken as excluded
simply because subordinate courts exercise a special jurisdiction under special Act.
The reason is that when a special Act on matters governed by that Act confers a
jurisdiction on an established court, as distinguished from a persona designata,
without any words of limitation, then the ordinary incident of procedure of that court
including right of appeal or revision against its decision is attracted. The right of
second appeal to the High Court has been expressly taken away by sub-section (3) of
Section 37 of the Act, but for that reason it cannot be held that the right of revision
has also been taken away. See National Telephone Co. Ltd. Vs. Postmaster General
and decision of the Privy Council in Adaikappa Chettiar V. Chandrasekhara Thevar
which have been relied on by the supreme Court in the case of National Sewing
Thread Co. Ltd. V. James Chadwick and Bros. Ltd. In National Telephone Co. case
Viscount Haldane, L.C. observed thus:
“When a question is stated to be referred to an established court without
more, it in my opinion, imports that the ordinary incidents of the procedure of
that court are to attach, and also that any general right of appeal from its decision
likewise attaches.”
20. “The true rule” is said by Lord Simonds (in Adaikappa Chettiar Case) that
“where a legal right is in dispute and the ordinary courts of the country are seized
of such dispute the courts are governed by the ordinary rules of procedure
applicable thereto and an appeal lies, if authorised by such rules, notwithstanding
that the legal right claimed arise sunder a special statute which does not in terms
confer a right of appeal.”
Section 96 of the Code of Civil Procedure may be referred to in this regard
which provides :
“S. 96. Appeal from original decrees. – (1) Save where otherwise expressly
provided in the body of this Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any Court exercising original
jurisdiction tot he Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed ten thousand rupees.”
On a bare perusal of the said provision it appears to us that even in absence of
any provision contained in any Act as to the appeal, an appeal shall lie to a court of
which the court passing the decree upon exercising an original jurisdiction in case of
an ordinary suit. By no stretch of imagination it is conceived that in absence of any
provision for appeal under the specified Act the litigant has a right is to move before
the High Court under Article 226/227 of the Constitution rather on a plain reading of
section 96 the right to appeal is conferred to a court which is superior to a court
exercising the original jurisdiction. Reference may be made to a case of R.M.A.R.A.
Adaikappa Chettiar & Anr. Vs. R. Chandrasekhara Thevar reported in Air
1948 Privy Council 12 that the courts authorised to decide the disputed legal right,
are governed by the ordinary rule of procedure and an appeal lies under such rule
notwithstanding the fact that such legal right is claimed under a special statute where
there is no provision for right of appeal. Such principle was accepted and applied by
the Division Bench of this court in case of Dilwar Sultan Vs. Keshab Chandra
Mukherji & Ors. reported in 58 CWN 740. The Division Bench while applying
and approving the aforesaid proposition was pleased to hold :
“An order under section 28, therefore, determines the question whether the
decree or order already made should be rescinded or varied in accordance with the
provisions of the Calcuta Thika Tenncy Act. If an order is made in terms of section
28, that order by the terms of section 28 is executable by the Controller on transfer
to him by the Court before which the application was made. The order determining
the application under section 28 thus adjudicates upon the rights of the parties to the
suit for recovery of possession of any holding of a thika tenant. That decision is
conclusive so far as that Court is concerned. The adjudication under section 28, be
it one of dismissal or rescission or variation of the decree or order, conclusively
determines the rights of the parties to the suit. It will, therefore, have effect as a
decree within section 2(2) of the Code of Civil Procedure. It is contended however
that as section 28 finds a place in a special enactment which does not provide
exclusively for an appeal, the appeal is not competent. In support of this contention
reliance is placed on the decision of Roxburgh, J., in the case of Panchanan Shah Vs.
Satyabandhu Mukherji (1) (54 CWN 541). The learned Judge accepted the view that
no appeal lay and the reason given by the learned Judge is that the power given
under section 28 is a special and extraordinary power given by the statute and an
appeal would lie only if special provisions were made by the Act for an appeal
creating a power. This view of Roxburgh, J., is opposed to the well-settled principle
that where a legal right is in dispute and the ordinary courts of the country are
seized of such dispute, the courts are governed by the ordinary rules of procedure
applicable thereto and an appeal lies if authorised by such rules notwithstanding that
the legal right claimed arises under a special statue which does not in terms confer
a right of appeal. (Adaikappa Chettiar V. C. Thevar (2) LR 74 : IA 264 : 52 CWN
275).
The question therefore is whether under the ordinary rules of procedure an
order made under section 28 is appealable or not. An order under section 28 is made
by the ordinary Civil ?Court of the country. As stated already, it determines a legal
right which is in dispute between the parties to the suit. It accordingly satisfies the
requirements of an appeal as laid down in the Code of Civil Procedure. The order
made under section 28 of the Calcutta Thlika Tenancy Act is therefore appealable.”
The Division Bench of the Madras High Court in case of S.A. Seshadri
Ayyangar Vs. A. Narayana Nair reported in AIR 1951 (Madras) 640 was also of
similar view that in absence of any provision for right to appeal under the special
statute, an appeal lies to a Forum authorised by a rule which governs the court in
seisin of such dispute.
After the judgment delivered by the Single Bench in case of Tapas Biswas
(supra) in November 28, 2008 the legislature made further amendment to the said
Act of 1997 which came in effect on and from 29th May 2009. By such amendment,
section 12A was introduced by which the proceedings may directed to be initiated in
terms of its pecuniary and territorial jurisdiction as would appear from Schedule IV
appended to the said Act of 1997. Such amendment was brought in following terms :
“12A. Special provisions regarding jurisdiction of Court for trial of suits for
possession.- (1) Notwithstanding anything contained in any other law, a suit or
proceeding by a landlord against a tenant in which recovery of possession of any
premises to which this Act applies is claimed shall lie to the Courts, as set out in
Schedule IV and no other Court shall be competent to entertain or try such suit or
proceeding.
(2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall,
mutatis mutandis, apply to all suits and proceedings referred to in sub- section (1)
except suits or proceedings which lie to the High Court at Calcutta."
SCHEDULE IV [See section 12A(1)]
Where the premises are situated on land wholly within the ordinary original
civil jurisdiction of the High Court at Calcutta,(a) In case the value of the suit exceeds ten lakh rupees, to the High Court at
Calcutta;
(b) In case the value of the suit does not exceed ten lakh rupees but exceeds
sixty thousand rupees, the City Civil Court established under section 3 of the City
Civil Courts Act, 1953 (West Bengal Act XXI of 1953);
(c) In any other suit, to the Chief Judge of the Court of Small Causes
constituted under the Presidency Small Causes Courts Act, 1882 (15 of 1882), in the
town of Kolkata, who may try the suit himself or may transfer the suit for trial to any
other Judge of the said Court who shall try the suit as a court of first instance.”
From a bare perusal of the said amendment it emerges (i) the suit for eviction
having a pecuniary value up to Rs. 60,000/- to the Chief Judge of Presidency Small
Causes Court at Calcutta (ii) eviction suit having a value more than Rs. 60,000/- up
to Rs. 10 lacs to the City Civil Court at Calcutta (iii) suit having a value more than
Rs. 10 lacs to the High Court. Thus in case of a suit for eviction having a pecuniary
value more than Rs. 10 lacs subject to the property situated within the Original Side
of the High Court, any order that would be passed by the Judge of the High Court
dealing with such suit, the appeal would lie to the Tribunal as the said Single Judge
will be treated as an authority within the meaning of “authority” in terms of section
2(r) of the Tenancy tribunal Act. Such disastrous proposition would lead to frustrate
the constitutional provisions where the courts are treated as superior than the
Tribunals situated under Article 323A and 323B of the Constitution of India. The
Tribunal can be supplementary to the court but are not substitute of court.
There is no manner of doubt that by an amending Act of 2009 the legislature
consciously confer jurisdiction upon the court to deal with the matters coming within
the section 6 and 7 of the Act of 1997. The introduction of word “Court” and
incorporation of Schedule IV in the said Act of 1997 sufficiently implies that the
legislature consciously confer jurisdiction upon the court and did not intend to
confer the power of appeal before the Tenancy Tribunal treating such court as an
“authority” under the specified Act. Any other intendment of the legislature would
not only frustrate the constitutional mandate but would also disturb the hierarchy of
courts including a High Court of the state. The intra court appeal against an order
passed by a Single Bench in such proceeding would not be maintainable directly but
the same would be subject to an intermediate decision by a Tribunal.
By creating an original jurisdiction of the High Court by the amending Act of
2009 to deal, determine and adjudicate the matter concerning section 6 and 7 of the
Act of 1997, any suit or proceeding initiated before it shall be regulated by the Rules
as framed under section 129 of the Code of Civil Procedure by the High Court itself.
The original jurisdiction of the High court to try and determine the original
proceeding is created under a letter patents and the final adjudication by way of
judgment, shall be challenged in appeal before the Division Bench. Such powers
unless expressly or by necessary implication, is taken away the right of appeal in
terms of Clause 15 of the letters patent remains unaffected and unaltered.
The legislative intent in incorporating section 12A in the said Act of 1997 was
to empower the court of the Small Causes constituted under the Presidency Small
Causes Courts Act 1882 and the City Civil Court established under the City Civil
Courts Act 1953 and the High Court to try and dispose of the eviction case. The
legislature uses the word “Court” with an obvious intention to exclude the decisions
and/or judgments and or decree delivered by such court, be tested to the court
superior to it as an appellate court. Any other interpretation would lead to an
anomaly and against the legislative intent and shall bring the court within the
purview of “authority” as defined under section 2(r) of the Tenancy Tribunal Act. By
incorporating sub-section 2 of section 12A of the Act of 1997 the intention of the
legislature is manifest that the suits of the proceeding initiated in the Small Causes
Court and a City Civil Court shall be regulated by the provisions of the Code of Civil
Procedure except the proceeding initiated before the High Court. The obvious
intention for keeping out the High Court proceeding being regulated by the Code of
Civil Procedure is that the proceeding of the High Court are regulated by its own
procedure and in case of any inconsistency of any of the provision of the Code of
Civil Procedure with that of a Rule framed by the High Court the Rule shall prevail.
The use of the word “suit” sufficiently implies that the said proceedings are to be
governed by the procedure applicable in case of an ordinary proceeding initiated to
such court which carries with it a right of appeal to a court superior to the said court
exercising original jurisdiction.
There is, thus, no hesitation in holding that the appeal shall lie from a
judgment and decree passed by the court as indicated in Schedule IV to Section 12A
of the Act of 1997 to a court which in case of an ordinary suit instituted to such
court.
On the analysis as undertaken hereinabove we have no hesitation in holding
that the Land Reforms and Tenancy Tribunal does not have jurisdiction to entertain
an application against any order judgment and a decree passed by a court as
envisaged under section 12A of the West Bengal Premises Tenancy Act 1997 and the
Schedule IV appended thereto in respect of a proceeding initiated under section 6 and
7 of the said Act.
We are not unmindful of the settled proposition of law that a judgment of a
Co-ordinate Bench should be respected and applied by another Co-ordinate Bench
and in respect of a disagreement the judicial discipline demands that the later Co-
ordinate Bench should refer the matter to a larger Bench. It is also settled law that the
judgment of a Co-ordinate Bench, if fails to take into consideration the amendments
and/or provision of the statute such judgment suffers from doctrine of per incurium
and the later Co-ordinate Bench may not be bound by such judgment.
The doctrine of per incurium is defined in Halsbury’s Laws of England 4th
Edition Vol. 26 in following terms :
“A decision is given per incurium when the court has acted in ignorance of a
previous decision of its own or of a court of coordinate jurisdiction which covered
the case before it, in which case it must decide which case to follow; or when it has
acted in ignorance of a House of Lords decision, in which case it must follow that
decision; or when the decision is given in ignorance of the terms of a statute or
rule having statutory force.
(emphasis supplied)
A decision should not be treated as given per incurium, however, simply because of
deficiency of parties, or because the court had not the benefit of the best argument,
and as a general rule, the only case in which decision should be held to be given per
incurium are those given in ignorance of some inconsistent statute or binding
authority. Even if a decision of the court of appeal has mis-interpreted a previous
decision of House of Lords, the court of appeal must follow its previous decision and
live the House of Lords to rectify the mistake.”
It has been held by the apex court in a case of State of UP Vs. Synthetics and
Chemicals Ltd. Reported in (1991) 4 SCC 139 as follows :
“40. ‘Incuria’ literally means ‘carelessness’. In practice per incurium appears to
mean per ignoratium. English courts have developed this principle in relaxation of
the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is
rendered, approved and adopted by this court while interpreting Article 141 of the
Constitution which embodies the doctrine of precedents as a matter of law”.
In a recent judgment the apex court in case of Vijay Narayan Thatte & Ors.
Vs. State of Maharastra & Ors. reported in (2009) 9 SCC 92 observed that in a
case where the relevant statute has not been brought to the attention of the court for
its consideration and the court has in ignorance of such statute decides the cause the
said decision would be rendered as per incurium.
If the principle of per incurium as decided in the different cases as stated
above is applied we have no hesitation to hold that the decision rendered by a coordinate bench in case of Dipak Kumar Singh (supra) is not a binding precedent but
looses its effect as per incurium. This is precisely so that the co-ordinate Bench did
not consider the amendment brought by the legislature by West Bengal Premises
Tenancy (amendment) Act 2009 by incorporating section 12A and schedule IV to
the said Act. The said judgment thus cannot be said to have laid down any law so as
to create a binding precedent upon the co-ordinate Bench.
The tribunal Application thus succeeds. However, there shall be no order as to
costs.
(Harish Tandon, J.)
Pratap Kumar Ray, J.
It is my pleasure to read the exhaustive judgement passed by my learned
brother Harish Tandon, J and while I do agree with the views expressed by His
Lordship explaining and detailing the different statutory provisions of law and
judgements on that field for interpreting the word authority and scope of appeal in
absence of any statutory provision when a litigation is proceeded with Code of Civil
Procedure before any Civil Judge, I want to express my views in another angle.
My brother Justice Tandon has referred the judgement delivered by me dealing
with the issue that District Judge is not an authority but a Court when sits in appeal
from judgement and decree of preemption case under West Bengal Land Reforms
Act, 1955 decided by learned Munsiff now redesignated as Civil Judge (Junior
Division) in the case Sk. Samsul Huda & Ors. v. Musharaf Hossain & Ors. reported
in 2002 WBLR (CAL) 654. Said view was confirmed by the Division Bench of this
Court in the case Pashupati Adhikary v. Pradyut Kumar @ Tarapada Adhikary
reported in (2003) 4 CHN 347.
During pendency of present matter to pronounce judgement, a new
development has cropped up due to amendment of West Bengal Premises Tenancy
Act, 1997 by the West Bengal Premises Tenancy (Amendment) Act, 2010 being
West Bengal Act 29 of 2010. This amending act was notified vide notification
No.1415-L dated 5th October, 2010 published in the Calcutta Gazette Extraordinary,
Part III dated October 5, 2010. The amending act read such:
“
Amendments to the West Bengal Premises Tenancy Act, 1997 [Full
Text]
1.
The West Bengal Premises Tenancy (Amendment) Act, 2010
[West Ben Act XXIX of 2010]
[With effect from 1.11.2010]
[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 Premises Tenancy Act,
1997 (West Ben. Act XXXVII of 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.
Short title and commencement.- (1) This Act may be called the West
Bengal Premises Tenancy (Amendment) Act, 2010.
(2) It shall come into force on such date as the State Government may, by
notification, appoint.
2.
Amendment of section 39 of West Ben. Act XXXVII of 1997.- To
section 39 of the West Bengal Premises Tenancy Act, 1997 (hereinafter
referred to as the principal Act), the following Explanation shall be added:“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.
Insertion of new section 43A- After section 43 of the principal Act, the
following section shall be inserted:“43A. Appeal, revision and review against decree or final order of Civil
Judge- The procedure for filling an appeal against decree or final order of Civil
Judge, and the powers to be exercised and the procedure to be followed in
admitting and dealing with such appeal, shall be the same as in case of appeals
under the Code of Civil Procedure, 1908 (5 of 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 (5 of 1908), shall, mutatis mutandis, apply.”
4.
Validation- The amendments made in the principal Act by section 2 and
3 shall be deemed to have been made with efect 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 judgement, 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.”
Having regard to the said amended provision, now under Section 43A of said
principal Act, provision of appeal, revision and review, against the decree or final
order of civil Judge, has been made, which read such:
“43A. Appeal, revision and review.-(1) An appeal shall lie from a final order
of the Controller to such Tribunal as the State Legislature may, by law,
provide:
Provided that until a Tribunal is so provided, an appeal from the final
order of the Controller shall lie to the High Court.
(2)
An appeal shall be final within 30 days from the date of order of the
Controller.
(3)
The Controller or the Tribunal shall in dealing with proceedings under
this Act be deemed to be a Court for the exercise of powers under
section 151 or section 152 of, or Order XLVII of the First Schedule to,
the Code of Civil Procedure, 1908 (5 of 1908).
(4)
The Controller or the Tribunal shall in dealing with the proceedings
under this Act follow such procedure as may be prescribed.
(5)
Every proceeding before the Controller or the Tribunal shall be deemed
to be a judicial proceeding within the meaning of section 175, section
193 and section 228 of the Indian Penal Code (45 of 1860).
(6)
The Controller or the Tribunal shall be deemed to be a Court for the
purpose of section 195 of the Code of Criminal Procedure, 1973 (2 of
1974).
(7)
The controller shall be deemed to be a public servant within the
meaning of section 21 of the Indian Penal Code.”
This amending act also stipulates a validation clause under Section 4. By
application of said validation clause, the amendment made in the principal act by
Section 2 and 3 of the said amending act applying “deeming provision”, has been
made effective from 10th day of July, 2001 with a rider by an non-obstante clause.
The validation provision is reproduced again for appreciation of the issue. It read
such:
“Validation.The amendments made in the principal Act by section 2
and 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 anything contrary
contained in any judgement, 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.”
Having regard to the present situation as discussed, in view of coming into
effect of Section 43A with retrospective effect from 10th day of July, 2001 providing
provision of appeal, revision and review against the decree or final order of Civil
Judge, I am of the view that order passed by the Learned Tribunal impugned in this
writ application whereby and whereunder Learned Tribunal below assumed
jurisdiction of an appellate authority over the order dated 17th August, 2009 passed
by Learned Civil Judge, Junior Division, 6th Court, Alipur in ejectment suit
No.52/2007 should be set aside, as it is not legally sustainable. Hence, the order
impugned in this writ application being order dated 18th March, 2010 passed in O. A.
No.2245 of 2009 (LRTT), stand set aside and quashed on the ground of lack of
jurisdiction. Writ application is thus allowed.
(Pratap Kumar Ray, J.)
LATER:
Let xerox certified copy of this order, if applied for, be given to the learned
Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.)
(Harish Tandon, J)