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2005 DIGILAW 260 (CAL)

SUPRIYA PANJA v. MANJU BANERJEE

2005-04-20

JYOTESH BANERJEE

body2005
JYOTESH BANERJEE, J. ( 1 ) THE present hearing arises out of an application under Section 115 of the Code of Civil Procedure and it is directed against an order 6. 11. 2001 passed by the Rent Controller, Bishnupur in the district of Bankura, in a proceeding registered as Case No. 1/bpta/2000. ( 2 ) IN the proceeding before the learned Rent Controller, respondent of this proceeding Smt. Manju Banerjee made a prayer for recovery of possession of a tenanted portion of a house at Mutukganj, Bishnupur, P. O. +p. S. Bishnupur in the district of Bankura from the admitted tenant of the house. The respondent filed the proceeding, inter alia, alleging that she has inherited the house from her mother where the petitioner of the present proceeding is a tenant in respect of a portion of the said house, that she requires the house for her own use and occupation as well as occupation of the members of her family including her son a qualified doctor who requires the suit premises for opening his chamber. She has further contended that her husband commodore, Parimal Banerjee, a member of Air Force, who at the relevant point of time was posed as Joint Director of Interim Test Range, Chandipur, orissa would retire shortly. In that background, the respondent initiated the proceeding for recovery of possession of the suit premises under Section 29b of the West Bengal Premises Tenancy Act, 1956. ( 3 ) THE learned Rent Controller in the impugned order rejected the argument advanced on behalf of the petitioner of the present proceeding that petitioner's husband has a reasonably suitable accommodation in Calcutta where they reside by observing that the certificate issued by the authority concerned, under the law would be a conclusive evidence to establish that the respondent of the present proceeding had requirement for the suit premises. With this finding he directed the present petitioner to vacate the suit premises within a specified time. Being aggrieved by such order, the petitioner has come up before this Court, challenging such order. The only point for my consideration here is whether in the facts and circumstances of the case, the order passed by the authority concerned is tainted with any illegality and therefore should be interfered with or not. Being aggrieved by such order, the petitioner has come up before this Court, challenging such order. The only point for my consideration here is whether in the facts and circumstances of the case, the order passed by the authority concerned is tainted with any illegality and therefore should be interfered with or not. ( 4 ) THE learned Advocate for the petitioner has mainly challenged the impugned order on the ground that in the proceeding before the Rent Controller, the O. P. /landlady did not file the certificate by the area or sub-area commander as contemplated under Section 29b (2b) of the West Bengal Premises Tenancy act. The landlady/o. P. of this proceeding as the petitioner there submitted one certificate from the authority, namely, Director, Interim Test Range, Chandipur where her husband at the relevant point of time was posed as Joint Director and the authority concerned, namely, Rent Controller on the basis of such certificate granted the order of eviction as prayed for by the landlady/petitioner before such authority, on the basis of such certificate accepting the same as the conclusive proof of the requirement of the landlady/petitioner. The authority concerned should have insisted on filing the certificate by the proper authority. Instead of that the learned Rent Controller acted on the certificate issued by an authority, who can not issue such certificate. In this connection, the learned advocate has drawn my attention to the specific provisions contained in section 29b (2b) of the W. B. P. T. Act where it is provided that if the landlord is the parent or the wife or a member of a family of the Naval, Military or Air force personal, in that event a certificate by the area or sub-area Commander within whose jurisdiction the premises are situated, is required to be filed. But in the instant case, the petitioner/landlady did not file the requisite certificate from the area or sub-area Commander in whose jurisdiction, the place in question that is to say the premises in question are situated, namely, Bishnupur fell. The Rent Controller admittedly based his order, which is the subject matter of challenge here on a certificate granted by Director, Interim Test range, Chandipur, which is Annexure 'r'-1 to Affidavit-in-opposition filed on behalf of the O. P. of this proceeding. The Rent Controller admittedly based his order, which is the subject matter of challenge here on a certificate granted by Director, Interim Test range, Chandipur, which is Annexure 'r'-1 to Affidavit-in-opposition filed on behalf of the O. P. of this proceeding. It is contended that when the certificate issued by the proper authority is the very basis of the order, the certificate issued by a wrong authority goes to the very root of the matter and the impugned order should be quashed only on that ground. In this respect, the learned Advocate for the petitioner has referred the case of J. L Bose, petitioner v. Brigadier Atindra Mohan Bhattacharjee, Respondent reported in air 1990 Cal 13 , wherein this Court make the following observation in connection with the production of the certificate :- para-16. "first of all the certificate required for initiation of the proceeding under Section 29b must be produced in original. It is not known whether in each of the 4 cases such original certificates were produced. It must be remembered that all the 4 cases were tried separately and not analogously and evidence in the 4 cases were also taken separately as would appeal from the impugned order itself. Even if the original certificate is exhibited in one of the cases that will not warrant the finding of the Additional Rent Controller being based on the copies of the certificates accepted in other cases. " ( 5 ) THE learned Advocate for the O. P. submits that Section 29b of the w. B. P. T. Act prescribes the separate procedure for disposal of the application for eviction on the ground of bona fide requirement. The Section excludes the jurisdiction of the Civil Courts and provides for such eviction on the basis of an application instead of a regular suit through presentation of a plaint and it is a departure from the general provisions of the W. B. P. T. Act, 1956, which act is enacted for the benefit and protection of the tenants. It is further submitted that in its anxiety to facilitate the availability of the accommodation for own use and occupation of the members of the family personal of the army, Navy etc. Such summary procedure has been adopted and there is no provision for an appeal etc. against the order of the Rent Controller. It is further submitted that in its anxiety to facilitate the availability of the accommodation for own use and occupation of the members of the family personal of the army, Navy etc. Such summary procedure has been adopted and there is no provision for an appeal etc. against the order of the Rent Controller. The High court may call for the record to see that the order has been passed in accordance with law or not. It is contended that the power thus given to the high Court patently, are not restricted to any limited purpose. It is for doing substantial justice in the matter when at this stage O. P. /wife procure the necessary certificate from the authority, namely, Commander, Headquarters, kolkata sub-area, that certificate Annexure Rule 4 to Affidavit-in-opposition should be entertained at this stage and on the basis of the same, the order of eviction should be passed. ( 6 ) THE learned Advocate for the O. R has also referred to case of K. Venkataramiah, Appellant v. A. Seetharama Reddy and Ors. Respondent reported in AIR 1963 SC 1526 and Shankar Ramchandra Abhyankar, appellant v. Krishnaji Dattatraya Bapat, Respondent reported in AIR 1970 SC 1 to show the extent of the summary proceeding only impugned order has been passed. ( 7 ) HAVING heard the rival contentions of the learned Advocates and on going through the record very carefully, I find that it is a settled law now that a certificate issued by a proper authority is the conclusive proof of the requirement of the petitioner in respect of the suit premises and that cannot be questioned in the Civil Court and it cannot be re-opened by examining whether actually there was any reasonable requirement for the suit premises, contrary to the certificate granted by the authority. Therefore, the certificate in a case like this plays a very vital part. Now Section 29b (1b) clearly lays down that the certificate must be from the area Commander or sub-area commander within whose jurisdiction the suit premises is situated. But in the instant case, admittedly in connection with the proceeding started in the district of Bankura, the petitioner/landlady being the wife of an Officer of the air Force filed the certificate not from any authority in whose jurisdiction, the suit premises at Bishnupur was situated. But in the instant case, admittedly in connection with the proceeding started in the district of Bankura, the petitioner/landlady being the wife of an Officer of the air Force filed the certificate not from any authority in whose jurisdiction, the suit premises at Bishnupur was situated. The certificate used for that purpose was issued by the Commander, Interim Test Range, Chandipur, Orissa. The certificate being the very basis of the order, it can be said that the authority concerned, namely, Rent Controller passed the order on the basis of a wrong certificate and therefore on the face of the order it cannot be sustained. In the case of Miss Kanta Udharam Jagasia, Appellant v. C. K. S. Rao, Respondent air 1998 SC 569 . One of the arguments advanced by the tenant before the competent authority in that case was that the certificate originally enclosed along with the application for eviction was not in order and the competent authority ought not to have allowed the applicant/landlady to substitute the certificate issued by the competent authority during the pendency of the eviction petition. This ground did not find favour with the High Court, which held that the certificate produced during the pendency of the trial would be sufficient compliance of the requirement under the law. The Supreme Court in the reported judgement did not disturb that finding. The Hon'ble Court that approval quoted the observation in accordance with the conclusiveness of the certificate, in the case of Shivram Anand Shiroor v. Radhabai Shantaram kowshik, (1984)1 SCC 588 : AIR 1984 SC 786 , the following observation is relevant here :-"it is now provided that if he produces a certificate in the manner prescribed it shall be taken as established, without further proof of the union or that he was such member and is now a retired ex-serviceman and that he does not possess any other suitable residence in the local area where he or any member of his family can reside. All that he has to further prove is that he bona fide requires the premises for occupation by himself or any member of his family. The certifigate is conclusive proof that he does not possess any suitable residence in the local area, but not that he bona fide requires that same for occupation by himself or any member of his family. The certifigate is conclusive proof that he does not possess any suitable residence in the local area, but not that he bona fide requires that same for occupation by himself or any member of his family. There may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family, being comfortably settled elsewhere with no need or pressure to move. But as soon as he establishes that he bona fide requires the premises for occupation for his family, he is entitled to recover possession and does not have to further prove that greater hardship would be caused to him than to the tenant if a decree for possession is not granted. It is of course, implicit that the person producing the certificate is the landlord. It is further implicit that the person mentioned in the certificate presently or previously a member of the armed forces was a simultaneous point of time both landlord and member of the armed forces. "it is to be noted here that the O. P. /landlady filed the copy of certificate which is marked annexure-R. 1 to the affidavit-in-opposition filed on her behalf before this Court and admittedly such certificate was granted by S. C. Narang, Director, interim Test Range, Chandipur in the State of Orissa where Air Commodore mr. Parimal Banerjee, the husband of the O. P. was posted as a Joint Director of the establishment. I have already pointed out that such certificate cannot be the basis of an order passed under Section 29b (2) (b) of the West Bengal premises Tenancy Act. As under that provision, the certificate must be issued by the area or sub-area Commander within whose jurisdiction, the premises in question are situated. It is to be noted further that through the said affidavit- in-opposition, the O. P. also brought before the Court a certificate issued by brig. N. S. Mukherjee, Commander, Headquarters, Kolkata, Sub-area. Admittedly in whose jurisdiction, the premises in question are situated. Here the only question is whether the O. P. should be allowed to cure the inherent defect in the order passed by the authority by supplying the necessary certificate before the High Court and not before the authority who passed the eviction order. N. S. Mukherjee, Commander, Headquarters, Kolkata, Sub-area. Admittedly in whose jurisdiction, the premises in question are situated. Here the only question is whether the O. P. should be allowed to cure the inherent defect in the order passed by the authority by supplying the necessary certificate before the High Court and not before the authority who passed the eviction order. The learned Advocate for the petitioner has submitted that since certificate is the very basis of the order being the conclusive proof of the relevant facts, the party concerned cannot be allowed to produce that important document before the High Court. She ought to have produced the same before the authority which passed the order as in that case the order thus passed suffered from inherent defect as such authority without the assistance of the proper certificate was not empowered to pass the eviction order. The learned Advocate for the O. P. on the other hand has submitted that though the instant proceeding arose out of an application under Section 115 of the Code of Civil Procedure, for revision, in such a proceeding, the High court has got the powers of an appellate Court and it can very well rectify the defect with the aid of further evidence tender before it through the annexure as noted above. In support of such contention, the learned Advocate has referred the case of Shankarv. Krishna (supra), he has reljed on the following portion of Para-6 of the judgement:-"now when the aid of the High Court is invoked on the revisional side it is done because it is a Superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of the jurisdiction, but the jurisdiction, which is being exercised, is a part of the general appellate jurisdiction of the High Court as a Superior Court, it is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. . . . . . . . " on going through the reported decision very carefully I find that appellant in that proceeding was the owner of a house in Poona. . . . . . . . " on going through the reported decision very carefully I find that appellant in that proceeding was the owner of a house in Poona. The respondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house. In 1958 he was transferred to another town where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit in the Court of Judge, Small causes under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position taken up by the respondent was that his son required to stay on in Poona and for that reason it could not be said that he had acquired suitable residence at his new place of posting. Moreover he had gone away from Poona only temporarily and on his return the premises would be required for his own use. The trial Court held that only a part of the premises, which were not required by the son, should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. Both sides filed appeals in the Court of District Judge. In appeal, it was decided that the Court was not empowered to bifurcate the premises. It was either suitable for the family or it was not suitable. But the appellate Court affirmed the decree on the ground that the order of the trial court was an equitable order. The respondent preferred a petition for revision under Section 115 of the Code of Civil Procedure before the High Court. The high Court dismissed the application. It was not satisfied that the appellate court had acted in the exercjse of its jurisdiction illegally or with material irregularity. The respondent moved a petition under Article 226 and 227 of the constitution challenging the same order of the appellate Court. In that proceeding, the Division Bench expressed the view that the respondent had not acquired an alternative suitable residence, the Court below were therefore, wrong in coming to the contrary conclusion and the order of the Courts below were set aside. In that proceeding, the Division Bench expressed the view that the respondent had not acquired an alternative suitable residence, the Court below were therefore, wrong in coming to the contrary conclusion and the order of the Courts below were set aside. In that background, the question which cropped up for consideration when the revisional jurisdiction was invoked and both parties were heard an order was made, in that background, whether the order of the sub-ordinate Court merged in the order of the High Court. If there was merger then such order would be only the order of the High Court and in that event such order cannot be challenged or attacked by another set of proceeding in the High Court, namely, by means of a petition under Article 226 and 227 of the Constitution. But if it was found at the dismissal of the revision petition the order of the Subordinate Court did not merge with the order of the High court then a proceeding under Article 226, 227 could be filed. In Para-6 of the judgement, the Hon'ble Court observed that when the aid of High Court was invoked on the revisional side, it was done because it was a Superior court and it could interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of the jurisdiction. But the jurisdiction, which was being exercised, was a part of the general appellate jurisdiction of the High Court as a Superior Court. It was only one of the modes of the exercising power conferred by the statute; basically and fundamentally it was the appellate jurisdiction of the High Court, which was being invoked and exercised in a wider and larger sense. After observing in this way, the Hon'ble Court came to the ultimate finding about the aforesaid question in the following language :- "we do not, therefore, consider that the principle of merger of orders of inferior Courts in those of Superior Courts should be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. " ( 8 ) IN my considered opinion, the aforesaid observation of the Hon'ble high Court will not be helpful for advancing the argument of the learned advocate for the O. P. that in this revisional proceeding, the Courts power is quite enough to accept additional evidence. The learned Advocate for the O. P. has also referred the case of K. Venkataramiah v. A Seetharama Reddy and ors. , (supra), the reported case deals with the power of the appellate Court in allowing the additional evidence to be produced. The learned Advocate for the O. P. has relied on some observation made in Para-16 of the judgement wherein the Apex Court made the following observation :-"apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even through the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgement' it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgement in a more satisfactory manner. "in my considered opinion, the aforesaid observation cannot come to the help of the O. P. in view of the simple fact that the Hon'ble Court made such an observation in connection with an appeal and not in connection with a revisional proceeding. ( 9 ) FROM my findings above, it is clear that the learned Rent Controller exercised jurisdiction not vested in him, as he ought not have passed an order of eviction on the basis of a certificate issued by wrong authority as indicated in this order. It is significant to note that the certificate, on the basis of which the O. P. now claims that she has got the correct certificate being annexure R-4 of the affidavit-in-opposition by O. P. , was never produced before the authority. It is significant to note that the order impugned was passed sometime in November, 2001, certificate in question was issued before that. It is significant to note that the order impugned was passed sometime in November, 2001, certificate in question was issued before that. No explanation is forthcoming why a vital document like Annexure R-4 was not produced before the authority concerned at the relevant point of time if really the same was issued on 2nd August, 2001. Be that as it may, from my discussion above, it is evident that the order passed by the Rent Controller is tainted with illegality and it should be set aside. Accordingly the revisional application being C. O. No. 88 of 2002 is allowed. The impugned order passed by the Rent Controller is herby set aside.