Calcutta High Court (Appellete Side)
Indian Oil Corporation Limited vs Anchit Agarwal & Ors on 3 September, 2021
1
RVW 157 of 2018
With
CAN 1 of 2018 (Old CAN 8846 of 2018)
With
CAN 2 of 2021
In
WPA 17722 of 2005
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Indian Oil Corporation Limited
Vs.
Anchit Agarwal & Ors.
For the Applicant in : Mr. S.N. Mookherji, Senior Advocate
RVW 157 of 2018 Ms. Vineeta Meharia, Advocate
Mr. Amit Meharia, Advocate
Mr. Pushpendu Chakraborty, Advocate
Ms. Madhurima Halder, Advocate
Ms. Subika Paul, Advocate
For the State : Mr. Amitesh Banerjee, Senior Standing Counsel
Mr. Suddhadev Adak, Advocate
For the Respondents : Ms. Sutapa Sanyal, Advocate
RVW 157 of 2018 Mr. Debrup Bhattacharjee, Advocate
Hearing concluded on : August 12, 2021
Judgment on : September 3, 2021
DEBANGSU BASAK, J.:-
1. Indian Oil Corporation Limited (IOCL) has applied for review
of the judgement and order dated August 10, 2018 passed in WPA
17722(W) of 2005 (Anchit Agarwal Vs. The State of West Bengal
and Ors.).
2. Learned Senior Advocate appearing for the IOCL has drawn
attention of the Court to the judgement and order dated August 10,
2018. He has submitted that, the writ petitioner restricted the relief in
the writ petition to prayer (a) of the writ petition. He has referred to
1987(2) Calcutta Law Journal 53 (Lakshmimoni Das vs. State of
West Bengal). He has submitted that, on August 10, 2018, the law
laid down by Lakshmimoni Das (supra) was no longer good law in
view of the pronouncement of the Supreme Court in 2015(14)
Supreme Court Cases 203 (Nemai Chandra Kumar & Ors Vs.
Mani Square Ltd & Ors). He has refered to 2016 Volume 4 Calcutta
High Court Notes (Calcutta) 190 (Shahi Enclaves Private Limited
vs. The State of West Bengal & Ors.). He has drawn the attention of
the Court to various pargraphs therein and submitted that, with the
establishment of the West Bengal Land Reforms Tenancy Tribunal, the
writ petition ought to have been transferred to the West Bengal Land
Reforms Tenancy Tribunal for adjudication. He has contended that,
the West Bengal Land Reforms Tenancy Tribunal is competent to
decide prayer (a) of the writ petition to which, the writ petitioner
confined other reliefs on August 8, 2018. According to him, the
Tribunal is competent to declare whether immovable property does not
come within the definition of thika tenancy under the West Bengal
Tenancy (Acquisition and Regulation) Act, 2001 or not or whether
such land was a thika tenancy under the previous Act or not.
3. Referring to Nemai Chandra Kumar & Ors (supra)
learned Senior Advocate appearing for the IOCL has submitted that,
the Supreme Court has recalled Nemai Chandra Kumar & Ors
(supra) on March 3, 2021. The Supreme Court has reserved
judgement on the issue as to what constitutes a thika tenancy under
the Act of 2001.
4. Learned Senior Advocate for the IOCL has submitted that,
on August 10, 2018, when the order in the writ petition was passed,
the Court had noticed 2014 (3) Calcutta High Court Notes
(Calcutta) 89 (Amit Basu Vs. Controller) and held that the writ
petition was maintainable. He has submitted that, in Shahi Enclaves
Private Limited (supra) the writ petition was directed against an
order of the West Bengal Land Reforms and Tenancy Tribunal. In such
context, the High Court has held that, the writ petition was
maintainable. The fact scenario in the writ petition governing the
present matter are different. Consequently, he has submitted that, the
order dated August 10, 2018 should be reviewed.
5. Learned advocate appearing for the writ petitioners has
questioned the maintainability of the review petition. She has
submitted that, the writ petition was filed prior to 2010 when the West
Bengal Land Reforms and Tenancy Tribunal was established. She has
submitted that, the jurisdiction of the Controller to decide the issue
raised in the writ petition from 2010. She has drawn the attention of
the Court to paragraph 25 of Amit Basu (supra). She has contended
that, there has been a change in definition of thika land. Such change
has been introduced by the Amendment Act of 2010 and has been
brought into effect from November 1, 2010. The Controller has been
vested with the jurisdiction to decide whether a particular land was a
thika tenancy or not only after the Amendment Act of 2010. She has
drawn the attention of the Court to the fact that writ petition involved
had been filed in 2005.
6. Learned advocate appearing for the writ petitioners has
referred to 2014 (1) Calcutta High Court Notes 544 (Bhandardaha
Beel Matsyajibi Samabay Samity Ltd & Ors. Vs. State of West
Bengal & Ors). She has submitted that, in a given context, a writ
petition is maintainable. According to her, the writ petition in the
present case is maintainable. The writ petition had been filed in 2005
when the Controller did not have the jurisdiction to decide the issues
raised in the writ petition. Referring to the review petition, learned
advocate appearing for the writ petitioner has submitted that, no
ground has been made out for review. She has submitted that, even if
there is a wrong finding or a wrong law being applied, the same does
not allow a review. In the facts of the present case, the basis of review
being Lakshmimoni Das (supra) being held not to good law and no
longer survives with the recalling of the judgement and order of Nemai
Chandra Kumar & Ors (supra). In support of her contentions she
has relied upon 1997 Volume 4 Supreme Court Cases 478 (Dokka
Samuel Vs. Dr. Jacob Lazarus Chelly) and 2006 Volume 4
Supreme Court Cases 78 (Haridas Das Vs. Usha Rani Banik (Smt)
& Ors).
7. Learned Senior Advocate appearing for the IOCL has relied
upon 2008 Volume 1 Calcutta High Court Notes 442 (Maruti Real
Estate Pvt. Ltd. & Anr Vs. Life Insurance Corporation of India &
Ors) and submitted that, the power of review under Article 226 of the
Constitution of India is not limited by Section 114 or Order 47 Rule 1
of the Code of Civil Procedure, 1908.
8. The writ petitioner had filed WP No. 17722 (W) of 2005 on
September 9, 2005. The writ petition had various prayers. The writ
petitioner gave up all the prayers save and except prayer (a) of the writ
petition. That the writ petition had been limited to prayer (a) was
recorded by an order dated December 20, 2005.
9. By the surviving prayer in the writ petition subsequent to
the order dated December 20, 2005, the writ petitioner has sought a
declaration that Premises No. 151, Bidhan Sarani, Kolkata does not
come within the purview of the Act of 2001 and does not stand vested
and never stood vested in the State of West Bengal either under the
Act of 1981 or under the Act of 2001.
10. The writ petition had been taken up for final hearing on
August 10, 2008 in presence of the parties to the writ petition. IOCL
had been represented on that date. At the hearing of the writ petition,
reliance had been placed on Amit Basu (supra) and Lakshmimoni
Das (supra) to contend that, an immovable property of the nature as
involved in the present writ petition cannot be declared as a thika
tenancy and that the writ petition was maintainable.
11. On August 10, 2018, Lakshmimoni Das (supra) had been
held to be not good law in Nemai Chandra Kumar & Ors (supra).
However Nemai Chandra Kumar & Ors (supra) has been recalled on
March 3, 2021. As on date, therefore, Lakshmimoni Das (supra)
holds the field. On August 8, 2018 Lakshmimoni Das (supra) had
been followed. In the facts of the present case, therefore, it cannot be
said that there is a need to review the judgement and order dated
August 10, 2018 in view of the overruling of Lakshmimoni Das
(supra).
12. The scope of review under Section 114 and Order 47 Rule 1
of the Code of Civil Procedure, 1908 has been considered by the
Supreme Court in the context of a Civil Suit in Haridas Das (supra)
and Dokka Samuel (supra). The Division Bench of our Court in
Maruti Real Estate Pvt. Ltd. & Anr (supra) has held that Section
114 or Order 47 Rule 1 of the Code of Civil Procedure, 1908, in terms
does not apply to an application for review in the writ jurisdiction.
13. Bhandardaha Beel Matsyajibi Samabay Samity Limited
& Anr (supra) has considered a writ petition challenging a tender
notice issued by the District Land and Land Reforms Officer,
Murshidabad. It has held that, the impugned tender notice was issued
for the purpose of settling tank fisheries. Such tender notice had
nothing to do with agrarian reforms. The District Land and Land
Reforms Officer issued the tender notice not in exercise of his powers
or in discharge of his functions under a Specified Act under the West
Bengal Land Reforms and Tenancy Tribunal Act, 1997. Therefore, it
had held that, the West Bengal Land Reforms and Tenancy Tribunal
could not entertain a challenge against such tender notice. It had
found the writ petition challenging the tender notice to be
maintainable.
14. In the facts of the present case, prayer (a) of the writ
petition relates to a declaration that premises No. 151, Bidhan Sarani,
Kolkata does not come within the purview of the Act of 2001 and that
such immovable property did not stand vested in the State of West
Bengal either under the Act of 1981 or under the Act of 2001. Section
6 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997
has specified the jurisdiction, power and authority of the Tribunal
established thereunder. It has stipulated that, the Tribunal shall, with
effect from such date as may be appointed by the State in the
notification on that behalf exercise jurisdiction, power and authority,
in relation to, inter alia, any order made by an authority under a
Specified Act. Section 2(r) of the Act of 1997 has defined the Specified
Act. It has included the West Bengal Thika Tenancy (Acquisition and
Regulation) Act, 2001 therein as Clause (vii). The Act of 2001,
therefore, is a Specified Act within the purview of the Act of 1997.
Section 2(b) of the Act of 1997 has defined an Authority to mean an
officer or authority or functionary exercising powers or discharging
functions as such under a Specified Act.
15. The West Bengal Thika Tenancy (Acquisition and
Regulation) (Amendment) Act, 2010 has introduced various
amendments to the Act of 2001. It has substituted sub-section (3) of
Section 5 with effect from November 1, 2010. By such substitution, it
has vested the Controller with the jurisdiction to decide the question
as to whether a person is a thika tenant or not or whether the land in
question is a thika tenant or not.
16. The issues that have been raised in the writ petition are
such that they come within the purview of Section 5(3) of the Act of
2001. Subsequent to November 1, 2010 the Controller has the
jurisdiction to decide the issues raised in the writ petition. The writ
petition has however been pending since its filing in 2005 till the
disposal of the same on August 10, 2018. The issue of maintainability
of the writ petition had been kept open by the order dated December
20, 2005.
17. The order dated August 10, 2018 had decided the issue of
maintainability of the writ petition on the basis of Amit Basu (supra).
As has been noted above, Amit Basu (supra) has found a writ petition
to be maintainable where a challenge was thrown to a tender notice by
the District Land and Land Reforms Officer. In that case, the issues
involved in the writ petition were not within the purview of Section 5(3)
of the Act of 2001.
18. In 2005, when the writ petition had been filed, the
Controller was not vested with the jurisdiction to decide the issue as
to whether a person is a thika tenant is or whether a land in question
is under thika tenancy or not. Such power has been vested with the
Controller with effect from November 1, 2010. Nothing has been
placed before the Court to suggest that, Section 5(3) of the Act, 2001
has retrospective effect. Section 21 of the Act of 2001 has barred the
jurisdiction of the Civil Court to decide or to deal with any question or
to determine any matter which is required to be or has been decided
or dealt with by the Controller or the Appellate Authority. However, a
statute cannot be read to mean that, the right of any citizen to
approach a High Court under Article 226 of the Constitution stands
extinguished. Section 21 is bar to Civil Court's jurisdiction and does
not and cannot affect Article 226 of the Constitution of India.
Existence of statutory alternative remedy is not an absolute bar to the
maintainability of writ petition. When a statute provides an alternative
remedy, the High Court exercises self-imposed restraint in
entertaining writ petition on an issue which can be dealt with by a
designated authority by statute to decide such issue. Notwithstanding
the existence of a statutory alternative remedy, a writ petition is
maintainable for the enforcement of any fundamental right or where
there has been a violation of the principles of natural justice or where
the order or proceedings are wholly without jurisdiction or where the
vines of an Act is under challenge.
19. The right to approach a High Court under Article 226 of the
Constitution of India, that is to say the power of judicial review vested
in the High Courts, cannot be said to be abrogated or abridged by a
statutory provision designating an alternative forum even if such
remedy can be said to be effective and efficacious.
20. On the date, when the writ petition had been filed, the writ
petitioner had two forai to ventilate the grievances. One was the Civil
Court and the other the Writ Court. The petitioner had chosen to
approach the writ Court. The introduction of Section 5(3) to the Act of
2001 by the Amendment Act of 2010 cannot be construed to denude
the jurisdiction of the High Court under Article 226 over a subject
governed by Section 5(3) of the Act of 2001 particularly when a writ
petition over such issue was pending at the time of introduction of
Section 5(3) into the Statute book.
21. As has been noted above, the writ petition had been
pending since 2005 till August 10, 2018 when it was disposed of. The
provisions of the Act of 2001 as it stands today, does not permit the
High court to remit the writ petition to the Controller for decision. The
Act of 2001 has not provided for transfer of pending proceedings to a
designated forum unlike, for example, the provisions of the Recovery of
Debts due to Banks and Bankruptcy Act, 1993. The issue as to
whether by virtue of Section 21 of the Act of 2001 pending suits
become barred by law or not has not arisen for decision in the facts of
the present case and therefore need not be decided. Since the writ
petition has been pending for a long period of time, every endeavour
should be made by the High Court to decide the issues raised on
merits particularly when, it cannot be said that the High Court did not
have the jurisdiction to entertain the writ petition as on the date of its
filing and that, subsequent thereto the jurisdiction of the High Court
stood denuded. It would not be in the interest of justice to exercise self
imposed restraint and require the writ petitioner or IOCL to have the
issue of thika tenancy decided by the Controller.
22. Lakshmimoni Das & Ors. (supra) has held that, only lands
comprised in thika tenancy within the meaning of the Calcutta Thika
Tenancy Act, 1949 comprising a Kuccha structure or a pucca
structure constructed for residential purpose with the permission of
the Controller under the Calcutta Thika Tenancy Act, 1949 and Khatal
land held under a lease shall vest in the State. Save and except those
specified types, no other land and structure has vested in the State. In
the facts of the present case, by a lease deed dated September 12,
1969, premises No. 151, Bidhan Sarani Kolkata had been demised to
IOCL for a period of 21 years. IOCL has claimed that the land stands
vested with the State as the lease was a thika tenancy and has
stopped payment of the lease rentals consequent upon which, the writ
petition was filed. In view of Lakshmimoni Das & Ors (supra)
holding the field so far as thika tenancies are concerned, the subject
premises cannot be said to be vested with the State under the Act of
2001 or the lease deed to be a thika tenancy.
23. In such circumstances, I find no merit in the review
petition. RVW 157 of 2018 along with all connected applications are
dismissed without any order as to costs. Department will note the
disposal of the writ petition also.
[DEBANGSU BASAK, J.]
