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2004 DIGILAW 125 (CAL)

SUMAN GHOSH v. RAMLAL CHOUDHURY

2004-02-19

PRABIR KUMAR SAMANTA

body2004
P. K. SAMANTA, J. ( 1 ) THE West Bengal Premises Tenancy Act, 1997 (hereinafter called as the said Act) has repealed the West Bengal Premises tenancy Act, 1956. In this petition under Article 227 of the Constitution of india, the landlord as being the defendant in a suit filed by the tenant for declaration of his tenancy right and injunction has raised an interesting question by contending that in view of the said Act, the present suit as above is not maintainable. In other words Civil Court's jurisdiction has been ousted by the said Act to entertain a civil suit for declaration of tenancy right in relation to a premises tenancy governed by the said Act. ( 2 ) MR. S. P. Roy Choudhury, the learned senior advocate appearing in support of the petition on behalf of the defendant landlord only upon reference to the provisions of sub-section (6) of section 39 and section 44 of the said Act has contended that the present enactment has barred the jurisdiction of Civil Courts in respect of matters between landlord and tenant in relation to a premises tenancy save as otherwise expressly provided in the said Act. ( 3 ) TO deal with the above question it is first necessary to consider the said provisions. ( 4 ) SECTION 39 broadly deals with the powers of Controller. Sub-section (6) of section 39 merely provides that the Controller may grant temporary injunction in such cases as may be prescribed. Section 44 of the said Act reads thus:"section 44. Jurisdiction of Civil Courts barred in respect of certain matters save as otherwise expressly provided in the Act.-No Civil court shall entertain any suit or proceeding insofar as it relates to fixation of fair rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court. " ( 5 ) UPON bare reading of the said provisions, it appears that an exclusive jurisdiction has been conferred upon the Controller in matters relating to fixation of fair rent in relation to any premises to which the said Act applies, eviction of any tenant therefrom or to any other matter over which the Controller alone has the jurisdiction by or under the Act. Chapter III of the said Act controls the eviction of tenants. In particular section 6 of the said chapter empowers the Controller to make or pass an order or decree for the recovery of the possession of any premises in favour of the landlord against his tenant on an application being made to him by the landlord on one or more of the grounds mentioned therein. Chapter VI deals with all matters relating to rent. Other matters to be dealt with by the Controller as per the said Act are matters in relation to the right of special class of landlords to recover immediate possession of premises from their tenant; restoration of possession by the tenant where the landlord has obtained delivery of possession of any premises from his tenant in pursuance of a decree obtained for the purpose of building or rebuilding or for making substantial addition or alteration to the tenanted premises or on the ground of reasonable requirement of the tenanted premises by the landlord, for the reasons stated thereunder and consequences thereof. Under Chapter VIII of the said Act Controller has been given the power to impose penalties for cutting off or withholding of essential supply or service, charging rent in excess of fair rent and for contravention of certain specific provisions of the said Act including making of untrue statement in the application of tenant for deposit of rent or for refusal by the landlord to accept rent or to grant receipt for rent paid without reasonable cause. Chapter IX is the only other chapter of the said Act which deals with repair and taking of measures for maintenance of essential service in the tenanted premises as also the right of the tenant to get supply of electricity to the premises without permission of the landlord, over which Controller exercises jurisdiction and would make necessary orders on the application being made to him. No other provisions of the said Act otherwise empowers the Controller to deal with any other matter or question that may arise between a landlord and his tenant or in respect of a premises governed by the said Act. Aforesaid provisions, as above, are specific and confer jurisdiction upon the Controller for the specific purposes mentioned thereunder. As stated above, the purposes, for which the controller has been vested with the jurisdiction, are broadly in relation to the incidence of tenancies, and limited to the questions of termination of tenancy under certain circumstances, restoration of possession either to the landlord or to the tenant as the case may be, determination of fair rent, manner of payment of rent, essential repairs of and supply and service to the premises. The exact extent of jurisdiction of the Controller is as prescribed in the said Act as above and does not extend beyond the same. In other words when the legislature says if certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. ( 6 ) THIS is a case where the tenant has filed a suit for declaration of his tenancy right in the suit premises along with a prayer for injunction. The jurisdiction so conferred upon the Controller as above, on its face does not cover the question involved in the suit. The questions whether Civil Court's jurisdiction in respect of a subject-matter has been barred and exclusive jurisdiction over the same has been conferred on a Tribunal or body are to be determined on true interpretation of the various provisions of the statute regarding special subject-matter. The Supreme Court in case of similar nature reported in AIR 1966 SC 1718 , Abdul Waheed Khan vs. Bhawani and Ors. , has held in paragraph 9 of the said report as under:"under section 9 of the Code of Civil Procedure, a Civil Court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish his contention. It is also equally well-settled that a statute ousting the jurisdiction of a Civil Court must be strictly constructed. It is settled principle that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish his contention. It is also equally well-settled that a statute ousting the jurisdiction of a Civil Court must be strictly constructed. The question is whether a suit based on title of a khatedar and for possession is either expressly or by necessary implication barred by the provisions of the Act. The relevant provisions of the Act may now be read: section 200. (1) Except as otherwise provided in this Act, or in any other enactment for the time being in force no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Government or any revenue officer, is by this Act, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters. Clauses (a) to (u ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No reliance is placed on the matters described in clauses (a) to (u) of this section. But it is said that under the other provisions of the Act a revenue officer is empowered to determine, decide or dispose of a question of title of a person to a land as khatedar and, therefore, a suit in a Civil Court is barred in terms of section 200 (1 ). The first section relied upon in that context is section 71, which reads: 'a shikmi may be ejected by order of the Tahsildar if he fails to vacate land on the termination of his lawful possession or does anything in contravention of his agreement, if any, provided that no ejectment shall take effect before the commencement of the next agricultural year. ' 'shikmi' is defined under the Act to mean a person who holds land from an occupant and is or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government. ' 'shikmi' is defined under the Act to mean a person who holds land from an occupant and is or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government. 'occupant' is defined to mean a person who holds land direct from Government or would do so but the right of collecting land revenue having been assigned or relinquished. Section 71, therefore, presupposes the existence of a legal relationship of landlord and tenant and enables the occupant to evict his shikmi if he does not comply with one or other of the conditions mentioned therein; it does not comprehend a decision on a question of title. The question of title is a matter foreign to the scope of section 71. If so, a suit in a Civil Court for a declaration of title and possession by a khatedar against a trespasser falls outside the scope of section 200 (1)of the Act. " ( 7 ) IT is almost settled law that the exclusion of the jurisdiction of the Civil courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Reference may be made to the Supreme Court decision reported in AIR 1966 SC 893 , Ram Swarup vs. Shikar Chand. It has been held therein that the bar created by the relevant provisions of the Act excluding the jurisdiction of the Civil Court cannot operate in cases where the plea raised before the Civil Court goes to the root of the matter. ( 8 ) IN the present case the tenant has filed the suit for declaration of his tenancy right in the suit premises. The plea of his tenancy, goes to the root of the matter, would, if upheld, compel the landlord to invoke the jurisdiction of the Controller to seek his eviction under the said Act. The landlord would not be entitled to evict his tenant without following the procedure prescribed therefor in the said Act. The bar of jurisdiction of the Civil Courts relates to the specified matters as stated thereunder over which the Controller alone has the jurisdiction to decide. Such jurisdiction does not cover the plea as raised in the present suit by the tenant. Let me take an example. The bar of jurisdiction of the Civil Courts relates to the specified matters as stated thereunder over which the Controller alone has the jurisdiction to decide. Such jurisdiction does not cover the plea as raised in the present suit by the tenant. Let me take an example. A landlord files a suit for eviction of the occupant of the suit premises as being his licensee. The said occupant takes up plea in the suit that he is a tenant in respect of the suit premises under the landlord and not a licensee under him. In such event, would the Civil Court debar the occupant to take such defence in the suit on the ground that such a plea can only be raised before the Controller under the said Act and not otherwise? The suit for declaration of tenancy right in respect of a premises governed by the aforesaid Act is a suit of civil nature inasmuch as a right to tenancy in respect of such premises has been claimed for in the suit. Explanation 1 to section 9 of the Civil Procedure Code makes it clear. It is necessary to bear in mind that the exclusion of the jurisdiction of the Civil Courts to entertain civil causes will not be presumed unless the relevant statute contains an express provision to that effect or leads to an inevitable implication of that nature. The language of section 44 of the said Act does not lead to such a conclusion. ( 9 ) AGAIN section 39 of the said Act prescribes the powers of the Controller. The Controller is an authority under the statute for dealing with the questions as specified in chapters III, IV, V, VI, VIII, and IX as discussed above and not others, if there be any. Under Section 39 of the said Act, the Controller has been vested with the powers of a Civil Court for the limited purposes as enumerated therein. All the provisions of the Code of Civil Procedure do not apply in the proceeding before the Controller. The Controller is therefore a statutory authority and/or Tribunal constituted under the said Act for the purpose of dealing with those matters only as discussed above. The Controller has not been designated as a Court. All the provisions of the Code of Civil Procedure do not apply in the proceeding before the Controller. The Controller is therefore a statutory authority and/or Tribunal constituted under the said Act for the purpose of dealing with those matters only as discussed above. The Controller has not been designated as a Court. The Controller, therefore, under the said act, cannot be held as a Civil Court nor it can be held to have all the powers of a Civil Court under the Code of Civil Procedure. If that be the position then it cannot be said that it will have jurisdiction to make an order of injunction either under section 151 or under Order 39 of the Code of'civil Procedure or for any other reason. The Legislature being aware of such situation in law, has vested the Controller with several powers as enumerated in section 39 of the said Act including the power to grant temporary injunction in such cases as may be prescribed, under sub-section (6) to the said section. This particular provision rather exemplifies that the Controller is not a Civil Court for dealing with all types of civil causes. The vesting of specific power of granting of temporary injunction by the relevant statute and not having the same inherently and without such particular provision of the statute, makes it more clear that the Controller does not take the seat of a Civil Court. ( 10 ) FOR all these reasons the contentions of the petitioner must fail. This petition under Article 227 of the Constitution of India is accordingly dismissed. There will be no order as to costs. Petition dismissed.