Basant Pran & Co. Jain & Associates v. R. C. Walia
2003-03-24
Prabir Kumar Samanta
body2003
DigiLaw.ai
JUDGMENT Prabir Kumar Samanta, J. These two revisional applications are taken up together for disposal as it involved a common question of law. A proceeding under the provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act) was initiated against the revisional petitioner. In compliance of the provisions of the said Act and upon due completion of the proceeding thereunder the petitioner was directed to vacate and give up possession of the disputed premises to the opposite parties by a notice issued under section 5 of the said Act on 21st April, 1999. The petitioner preferred an appeal against the said order of eviction before the Chief Judge, City Civil Court, Calcutta. The Chief Judge in course of his business transferred the said appeal to the Court of VIIIth Bench, City Civil Court at Calcutta for its disposal. The petitioner, accordingly made an application before VIIIth Bench for sending back the case records of the said appeal to the court of the learned Chief Judge, City Civil Court on the plea that in view of section 9 of the said Act, the Chief Judge alone is empowered to take up the appeal for hearing and no other Bench of the City Civil Court is competent and/or authorised to hear the same. The said application was rejected by the impugned order which is the subject matter of this revisional application. 2. Thus the short question involved in this revisional application is whether an appeal under section 9 of the said Act would only be decided by the Chief Judge, City Civil Court, Calcutta in exclusion of other Benches of the said Court. 3. To appreciate the aforesaid question it is necessary to look into the provisions of section 9 of the said Act which reads as under:- "Appeals.-(1) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or section 5-B or section 7 to an appellate officer who shall be the District Judge of the district in which the public premises are situated or such other judicial officer in that district of not less than ten years standing as the District Judge may designate in this behalf.
(2) An appeal under sub-section (1) shall be preferred,- (a) in the case of an appeal from an order under section 5, (within twelve days) from the date of publication of the order under sub-section (1) of that section; (b) in the case of an appeal from an order (under section 5-B or section 7, within twelve days) from the date on which the order is communicated to the appellant; and (c) in the case of an appeal from an order (under section 5-C, within twelve days from the date of such order:) Provided that the appellate officer may entertain the appeal after the expiry of the (said period), if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit : Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under section 5-B for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal. (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (5) The cost of any appeal under this section shall be in the discretion of the appellate officer. (6) For the purposes of this section, a presidency town shall be deemed to be a district and the Chief Judge or the Principal Judge of the City Civil Court therein shall be deemed to be District Judge of the district." 4. The City Civil Court is an additional Civil Court for the City of Calcutta established under the City Civil Court Act, 1953.
The City Civil Court is an additional Civil Court for the City of Calcutta established under the City Civil Court Act, 1953. Section 2 of the City Civil Court Act, 1953 defines Chief Judge as the Chief Judge of the City Civil Court and prescribes each of the Judges of the City Civil Court as the Judges having all the powers conferred under the said Act. Section 2 of the said Act reads as under:- "Appointment of Judges.-(1) There shall be appointed a Chief Judge of the City Civil Court and as many other Judges of that Court as the State Government thinks fit. (2) Each of the Judges of the City Civil Court may exercise all or any of the powers conferred on that Court by this Act or by any other law for the time being in force." 5. Again section 10 of the City Civil Court Act, 1953 provides as under:- "Power of Chief Judge in respect of distribution of business, and transfer and withdrawal of suits or proceedings:-(l) The Chief Judge may make such arrangements as he thinks fit for the distribution of business of the City Civil Court among the Judges thereof. (2) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or if he is of opinion that it is necessary so to do in order to ensure proper distribution of business or in order to give effect to the provisions of section 11, then of his own motion and without such notice, the Chief Judge may at any stage- (a) transfer any suit or proceeding pending before him for trial or disposal to any other Judge of the City Civil Court, or (b) withdraw any suit or proceeding pending before any other Judge of that Court, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Judge other than the Judge from whom it was withdrawn.
(3) Where any suit or proceeding has been transferred or withdrawn under sub-section (2), the Judge who thereafter tries such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn, as he thinks fit : Provided that in a suit or proceeding where the hearing has already commenced before the transfer or withdrawal, the Judge shall retry it if any of the parties prays for a retrial." Section 12 of the City Civil Court Act, 1953 reads as under:- “Temporary Charge of Officer of Chief Judge.-(1) In the event of the death, resignation or removal or absence on leave of the Chief Judge or of his being incapacitated by illness or otherwise from the performance of his duties, or of his absence from the City of Calcutta, the Judge of the City Civil Court next in order of seniority according to the period of (service in the West Bengal Higher Judicial Service), who may be present, shall, without relinquishing his ordinary duties, assume charge of the officer of the Chief Judge, and shall continue in charge thereof until the office is resumed by the Chief Judge or assumed by a person appointed thereto. (2) While in charge of the office of the Chief Judge, such Judge may, subject to any rules which the High Court may make in this behalf, exercise any of the powers of the Chief Judge." 6. Upon conjoint reading of the aforesaid provisions of the City Civil Court Act, 1953 it becomes clear that each of the Judges of City Civil Court, Calcutta has been vested with coordinate jurisdiction as that of the Chief Judge, City Civil Court without making any distinction amongst them in relation to their respective jurisdiction except for that the Chief Judge of the City Civil Court shall be appointed as such who shall be the chief amongst the equals. 7. Section 9 of the said Act provides for an appeal before an appellate officer who shall be the District Judge of a district in which the public premises are situated or such other Judicial Officer in that district of not less than 10 years standing as the District Judge may designate in this behalf.
7. Section 9 of the said Act provides for an appeal before an appellate officer who shall be the District Judge of a district in which the public premises are situated or such other Judicial Officer in that district of not less than 10 years standing as the District Judge may designate in this behalf. The very expression of section 9 of the said Act does not refer to the District Judge of a district as being the only appellate officer to whom an appeal shall lie. The phrase that "an appellate officer who shall be the District Judge of the district in which the public premises are situated or such Judicial Officer in that district of not less than 10 years standing as the District Judge may designate in this behalf” is an inclusive expression thereby meaning that either the District Judge himself of a district or in the alternative a Judicial Officer of that district of not less than 10 years standing as the District Judge may designate in that behalf shall be the appellate officer before whom an appeal under section 9 of the said Act would lie. 8. District Judge has been defined in sub-section (17) of section 3 of the General Clauses Act in the following manner:- "District Judge shall mean the Judge of the principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extra-ordinary original civil jurisdiction." 9. Again sub-section (8) of section 2 of the Civil Procedure Code defines Judge as the presiding officer of a civil court and sub-section (4) of section 2 of the Civil Procedure Code defines district as the local limits of the jurisdiction of a principal civil court of original jurisdiction including the local limits of the ordinary original civil jurisdiction of a High Court. Thus by necessary implication the District Judge is the presiding officer of the principal civil court of original jurisdiction having the local limits of jurisdiction of a district. 10. Under section 3 of the Bengal, Agra & Assam Civil Courts Act, 1887, the classes of courts have been specified as the court of the District Judge, the court of the Additional Judge, the court of the Assistant District Judge and the court of the Munsif.
10. Under section 3 of the Bengal, Agra & Assam Civil Courts Act, 1887, the classes of courts have been specified as the court of the District Judge, the court of the Additional Judge, the court of the Assistant District Judge and the court of the Munsif. Section 8 of he Bengal, Agra & Assam Civil Courts Act, 1887 provides that when the business pending before any District Judge requires the aid of Additional Judge for its speedy disposal, the State Government may having consulted the High Court appoint such Additional Judges as may be requested. Sub-section (2) of section 8 provides that Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions they shall exercise the same powers as that of the District Judge. Section 20 of the Bengal, Agra & Assam Act provides for an appeal from a decree or order of a District Judge or Additional District Judge to the High Court whereas section 21 of the said Act provides for an appeal from a decree or order of an Assistant District Judge to the District Judge where the value of the original suit does not exceed the amount as specified therein. Again under sub-section (2) of section 20 an appeal from a decree or order of an Additional Judge shall not lie to the High Court if such an appeal did not lie to the High Court in case such decree or order was passed by the District Judge. Section 21(3) empowers the Additional District Judge to receive an appeal that may lie before the District Judge if he is so assigned by the District Judge. Thus by necessary implication the District Judge and the Additional District Judge are treated as Courts of coordinate jurisdiction while the District Judge will be a grade higher than that of the Assistant District Judge and certainly much higher than that of the Munsif. 11. In the City Civil Court Act, 1953, the City Civil Court has been defined as the Court established under section 3 of the said Act.
11. In the City Civil Court Act, 1953, the City Civil Court has been defined as the Court established under section 3 of the said Act. Section 8 provides for an appeal to the High Court against every decree passed by the City Civil Court and every order passed by it being an order specified in sub-section (1) of section 104 of the Code of Civil Procedure and in particular, in Order 43 of the First Schedule to the Code of Civil Procedure or an order under clause (i) or clause (ii) of section 14 of the above Act or any other order from which an appeal lies to the High Court under any law. It is, therefore, clear that no distinction has been made amongst the Chief Judge and other Judges of the City Civil Court in respect of their judicial grade or status as in the case between a District Judge of a principal civil court of original jurisdiction and an Assistant District Judge of that court. The Chief Judge of the City Civil Court, is therefore, a Judge of the same grade and rank as that of the other Judges of that court except for the fact that he is appointed as the Chief Judge of that court by the State Government. He is, therefore, a Judge of same status and rank with the additional responsibility of dispensing with the administration of justice in the said court. Section 10 of the said City Civil Court Act empowers the Chief Judge to make such arrangements as it thinks fit for the distribution of business of the City Civil Court amongst Judges of the said court. Such power of the Chief Judge includes the power on his own motion and also upon an application to transfer any suit or proceeding pending before him for trial or for disposal to any other Judge of the City Civil Court or for withdrawal of any suit or proceeding pending before any other Judge of that court for trial or for disposal of the same either by himself or by any Judge other than the Judge from whom it has been withdrawn.
Thus upon reading of the aforesaid provisions of the City Civil Court Act, 1953 in relation to the provisions of Bengal, Agra & Assam Civil Courts Act, 1887 there cannot be any escape from a conclusion that the Chief Judge, City Civil Court is a Judge of coordinate jurisdiction with that of the other Judges of the City Civil Court and does not hold a rank and/or grade higher than that of the other Judges of the said court. The Chief Judge in exercise of his power under section 10 of the said Act is absolutely competent to transfer any suit and/or proceeding pending before him for disposal to any other Judge of the said court for the purpose of ensuring proper distribution of judicial work amongst the Judges of that court. Section 9 of the said Act does not contemplate that the District Judge of a district shall be the only appellate authority. On the contrary a Judicial Officer in a district of not less than 10 years standing as a Judge of a principal civil court exercising original jurisdiction as may be designated by the District Judge shall also be competent to entertain and hear the appeal provided therein. Therefore, on the analogy of expression as given in section 9 of the said Act and in the views that other Judges of the City Civil Court are having the coordinate jurisdiction as that of the Chief Judge of City Civil Court, such other Judge of the City Civil Court would be absolutely competent to hear the appeal as preferred under section 9 of the said Act as may be transferred to him by the Chief Judge, City Civil Court, Calcutta in exercise of his power under section 10 of the City Civil Court at Calcutta. 12. There is therefore no illegality and/or materially irregularity in the exercise of jurisdiction either by the Chief Judge, City Civil Court, Calcutta in transferring the appeal to the court of VIIIth Bench of the said court, for the purpose of its disposal or in the order or rejection by the VIIIth Bench, City Civil Court, Calcutta of the application made by the petitioner for transferring back the said appeal to the Chief Judge, City Civil Court, Calcutta for the purpose of its disposal. 13. This revisional application shall accordingly stand dismissed. Revisional application dismissed.