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2012 DIGILAW 692 (JHR)

Anima Ghose v. State of Jharkhand

2012-05-03

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
JUDGMENT By Court - Heard learned counsel for the parties. 2. The appellants are aggrieved against the order dated 1st February, 2012 passed in W.P.(C) No.5685 of 2006, whereby the appellants' writ petition has been dismissed on the ground that in the petition the appellants challenged the order of remand and subsequent to that, during pendency of the writ petition, final order was passed by the Sub Divisional Officer after remand. The learned Single Judge held that the appellants will be free to challenge the order of the Sub Divisional Officer, which has been passed after the order of remand. 3. The learned counsel for the appellants submitted that the remand order dated 24th June, 2006 passed by the appellate court was absolutely illegal and, in fact, in the eye of law, it was not even an order and, therefore, the learned Single Judge has committed serious error of law by ignoring this fact that when order of remand itself was not an order in the eye of law then any consequential order passed in consequence to the remand order cannot be allowed to stand. It is submitted that the petitioners' preferred writ petition in the year 2006 and the same has been dismissed in the year 2012 on the above ground, which also cannot be justified. 4. Learned counsel for the respondents vehemently submitted that the respondents were paying rent before these proceeding but thereafter they are paying rent under compulsion and because of the orders passed by the authorities below. It is submitted that the order of remand was revisable under Section 26 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. It is submitted that, therefore, the writ petition was not maintainable, as the petitioners without availing the alternative remedy, approached this Court by filing the writ petition. It is also submitted that after the remand order, final order has already been passed. The learned counsel for the respondents also tried to submit on the merit of the case. 5. We have considered the submissions of the learned counsel for the parties and perused the remand order, which is as under: “Case is remanded to S.D.O for fresh assessment” This is the total order. The learned counsel for the respondents also tried to submit on the merit of the case. 5. We have considered the submissions of the learned counsel for the parties and perused the remand order, which is as under: “Case is remanded to S.D.O for fresh assessment” This is the total order. It appears that appellate authority was not aware of the law that how in appeal order can be set aside and even was not aware about the law under what circumstances and for what reason the remand order can be passed. The appellate court also failed to take note of the fact that appellate court also have all the powers of the trial court and if there is all material before the appellate court and evidence, then the appellate court is bound to decide the matter on all the issues. If some evidence is allowed to be produced to any of the party or for the other lawful reasons, the matter is required to be sent back to the trial court and then those reasons are required to be recorded. Interfering in the lawful order by the appellate court without assigning any reason is no order in the eye of law. We have already noticed that in the order neither there is fact nor there is reason, nor there is argument of the parties, nor any reason has been given, while passing of the order of remand. Not only this, in the order even the order of the trial court has not been set aside. 6. Be that as it may, the order is not an order in the eye of law. When the impugned order is not an order in the eye of law then if the petitioners have approached this Court by filing writ petition in the year 2006 forthwith, then in that situation there was no reason to dismiss the writ petition on the ground of availability of alternative remedy after a period of six years in 2012. 7. Sofar passing of the final order subsequent to the remand order dated 24th June, 2006 is concerned, we are of the considered opinion that once the remand order is found to be absolutely illegal and nullity and no order in the eye of law then all steps taken in pursuance of that order also cannot be allowed to stand and they cannot validate the order of remand. 8. In view of the above reasons, the present Letters Patent Appeal is allowed. The order of the learned Single Judge is set aside and consequent thereto, the order of remand dated 24th June, 2006 is also set aside. The appellate court may now proceed to decide the matter, in accordance with law. Both the parties shall appear before the appellate court on 18th June, 2012.