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2000 DIGILAW 580 (CAL)

Tarapada Ghorai v. State of West Bengal

2000-11-27

D.K.SETH

body2000
JUDGMENT D.K. SETH, J. 1. Mr. Ghose, learned counsel for the petitioner points out to the impugned order being Annexure 'D' and submits that the order is a non-speaking order and does not spell out any reason to enable the appellate authority to scrutinise the order. In support of his contention, Mr. Ghose has relied upon a decision in the case of Calcutta Municipal Corporation & other vs. Paresh R. Karpani, 1998 CLJ(2) 87, wherein a Division Bench of this Court had taken a view that the hearing officer is obliged to pass a reasoned order. He also relief on a decision in case of M/s. Ulkambus India Ltd. vs. Ulkambus Workers Union & another, AIR 1973 SC 2758 , wherein it was held that giving of reasons in support of the conclusion by a judicial and quasi judicial authority when exercising initial jurisdiction is essential for various reasons as specified in the said judgment. Mr. Ghose has also relied on a decision in the case of State of West Bengal vs. Atul Krishna Shaw, AIR 1990 SC 2205 , wherein it was held that giving reasons is an essential element of administration of justice. 2. Mr. Das Adhikary, learned counsel for the Corporation on the other hand points out from Annexure 'D' that there are reasons whether these reasons are justified or not can be gone into in appeal but not in exercise of writ jurisdiction. In elaborating his submission he has contended that the order that was involved in the decision in the case of Paresh R. Karpani (supra) was completely different where in fact no reasons was given. But in the present order it appears that the reasons are manifest. He had also relied on a decision in the case of Killa Investments Pvt. Ltd. vs. Calcutta Municipal Corporation, 1998 (1) CHN 333 , in order to contend that the writ jurisdiction should not be allowed to be invoked in order to avoid the implication of section 189(6) of the Act. He had also relied on a decision in the case of Calcutta Municipal Corporation vs. Bala Bestos India Limited, 1998 (1) CHN 492 , wherein a Division Bench of this Court had taken a different view that where there is an alternative efficacious remedy the writ jurisdiction should not be exercised. He had also relied on a decision in the case of Calcutta Municipal Corporation vs. Bala Bestos India Limited, 1998 (1) CHN 492 , wherein a Division Bench of this Court had taken a different view that where there is an alternative efficacious remedy the writ jurisdiction should not be exercised. He then relied on a decision in the case of Srikant Kashinath Jituri vs. Corporation of City of Belgaon, JT 94(6) SC 496, wherein it was held that writ petition can be invoked on the ground that alternative remedy provided by the statute is not adequate or efficacious. He had also relied on a decision in the case of Shyam Kishore vs. Municipal Commissioner, Corporation of Delhi, AIR 1992 SC 2279 , wherein it was held that where alternative remedy is a satisfactory solution invoking of Article 226 is improper. He had further relied on a decision in the case of Asoka Hotel vs. CMC, 2000 CHN (1) 740, and relied on paragraphs 15, 16 and 17. In the said decision according to the learned Single Judge following the decision in case of Bala Bestos and various other decisions has taken the same view. I have heard both the counsels at length. 3. It appears that the order is impugned has contained some reasons which specify that there were additional construction in the 1st, 4th and 5th stories. The 4th storey is occupied by the tenant at a rent of Rs. 2,000/- per month. Some part of the building is used for ceremonial purpose. Certain amounts have since been calculated on the basis thereof as is apparent from the order itself which is quoted below:- P.O. appears. Seen objective petitioner. A.I. present. Examined I.B. Heard both sides. Occupied by R.O. from before hand. Administration in I, II, IV & V & VI occupied by tenant (resi) Rs. 2,000/- p.m. I (1194 & 480) used as N.R. II used for ceremonial purpose, (daily rent Rs. 4,500/- per day) Considered. A.V. fixed as follows:- Rs. 3,09,680/- Rs. 35,280/- Total Rs. 3,44,960/- 4. From the said order it appears that the petitioner had signed the said order. Whereas the order that was impugned in the case of Paresh R. Karpani reads as follows:- "Assessee is present. Seen inspection report. Heard the assessee. Seen also I.B. After hearing both the parties and considering the matter the reasonable rent is fixed at Rs. 3,44,960/- 4. From the said order it appears that the petitioner had signed the said order. Whereas the order that was impugned in the case of Paresh R. Karpani reads as follows:- "Assessee is present. Seen inspection report. Heard the assessee. Seen also I.B. After hearing both the parties and considering the matter the reasonable rent is fixed at Rs. 1,000/- and municipal annual value therefore come to Rs. 10,800/- after allowing statutory deduction as admissible." 5. A comparative study shows that in this case certain reason has since been given as to how the valuation has been arrived at. Therefore, there being some reason it can not be said that there was no reason at all or that the order is not a speaking one. Be that as it may, a hearing officer is not supposed to write a detailed judgment but he has to indicate in mind as to why he has arrived at a particular conclusion. While considering the same when there is an adequate alternative remedy it is not for this Court to enter into the justification of the reasons given. The reason may be baseless but still then reasons having been given the order can not be said to be without any reason. In case the reasons are not justified the same can be assailed in the appeal and can be gone into by the appellate authority and in the appeal the appellant has a right to assail the said reasons as baseless. When there is an adequate alternative remedy available this court is not supposed to go into the question of determining the issues on facts as to the justification for the reasons given or the materials on which such reasons are based. 6. There is no dispute about the ratio decided in the case of M/s. Ulkambus India Limited (supra) that giving of reasons is an essential element while passing an order by a judicial or quasi judicial authority while exercising the initial jurisdiction. In the instant case the hearing officer had exercised initial jurisdiction. Therefore, he is obliged to give reasons and he having given reasons the ratio decided in the case of M/s. Ulkambus India Limited cannot be attracted. At the same time, the decision in the case of Paresh R. Karpani cited by Mr. Ghose also can not be attracted. In the instant case the hearing officer had exercised initial jurisdiction. Therefore, he is obliged to give reasons and he having given reasons the ratio decided in the case of M/s. Ulkambus India Limited cannot be attracted. At the same time, the decision in the case of Paresh R. Karpani cited by Mr. Ghose also can not be attracted. Similarly, the decision in the case of State of West Bengal vs. Krishna Shaw (supra) also does not apply in the facts and circumstances of the case. As decided in the said decision giving of reason is an essential element of administration of justice. There is no doubt about such a proposition. 7. The decision cited by Mr. Das Adhikary with regard to the alternative remedy are also a settled proposition with which there is no quarrel. In the present case the remedy appears to be an adequate remedy as has been held in some other decisions and therefore this Court can not intervene when in fact there is an adequate alternative remedy as has been held in the case of Srikant Kashinath Jituri (supra) by the Apex Court as well as in the decision by this Court in Killa Investments Pvt. Ltd. to the extent that writ jurisdiction can not allowed to be invoked to avoid the implication of section 189(6) of the Calcutta Municipal Corporation Act for avoiding payment. Similarly, the decision in the case of Bala Bestos (supra) by the Division Bench of this Court has also taken the same view that an existence of efficacious alternative remedy will staire at the face of exercising discretionary jurisdiction under Article 226 by this Court. The decision of the learned Single Judge in the case of Asoka Hotel (supra) supports the same view which does not need any elaboration. 8. In the circumstances this writ petition fails and is accordingly dismissed. It will be open to the petitioner to proceed with the appeal in accordance with law. If an urgent xerox certified copy of this order is applied for the same may be supplied as early as possible. Writ petition dismissed.