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2015 DIGILAW 566 (CAL)

Mahendra Kumar Jalan v. Anil Kumar J. Bavishi

2015-07-13

JOYMALYA BAGCHI, MANJULA CHELLUR

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JUDGMENT : The present appeal pertains to second round of litigation in the same controversy between the parties. The enactment in which the parties are fighting the lis is the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. According to the appellant, he had to knock at the doors of this Court invoking powers under Article 226 of the Constitution on account of serious penal consequences which have to be faced by the appellant for want of registration of the person and also want of registration of the project of the promoter. 2. The order of the learned Single Judge dated 15-2-2012 has given rise to the present litigation. The earlier writ petition was filed by the complainant aggrieved by the reasoned order of the Authorized Officer on the complaint of the writ petitioner. Sections 5, 6 and 6A of the aforementioned Act are relevant for the purpose of deciding the controversy in the matter. The learned Judge disposed of the writ petition by Order dated 15-2-2012 in the following manner :- “The Court : Mr. Ghosh appearing for the respondents submits that the petitioner had a statutory remedy of revision under section 6A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. The petitioner is aggrieved by an order of the Authorised Officer dated August 24, 2011 (at page 269) Mr. Banerjee appearing for the petitioner does not dispute that the petitioner could file an application for revision. But he says that the remedy of revision cannot be considered an efficacious remedy, for it is the discretion of the State Government either to revise the order or not to revise. I think the petitioner should be regulated to the remedy of revision under section 6A. If the petitioner remains aggrieved by the decision of the State Government, he can always approach the Writ Court under art.226. For these reasons, I dispose of the writ petition saying that the petitioner is at liberty to file revision under section 6A and hopeing that the revision application is submitted, then the State Government will deal with it without any delay. No costs. Certified xerox.” 3. For these reasons, I dispose of the writ petition saying that the petitioner is at liberty to file revision under section 6A and hopeing that the revision application is submitted, then the State Government will deal with it without any delay. No costs. Certified xerox.” 3. Subsequently, when the matter went before the statutory Revisional Authority, said authority dismissed the revision on the ground of limitation holding that the revision was preferred beyond the period of limitation contemplated under section 6A of the above Act. 4. Aggrieved by the same, the writ petitioner/complainant approached this Court in the present writ petition contending that there was no justification to dismiss the revision without going into the merits of the case since the order dated 15-2-2012 implies that the period of limitation contemplated under Section 6A of the Act was impliedly waived. Ultimately, the matter was heard at length and the learned Single Judge by a detailed order passed the impugned Judgment. 5. Aggrieved by the same, the appeal is preferred by the promoter contending that there was no discussion with regard to the period of limitation except a direction that since statutory revision is maintainable against the impugned order of Authorized Officer, the matter has to be heard by the Authority under section 6A of the Act. In other words, according to the learned Senior counsel, Mr. Shaktinath Mukherjee, in the light of special statutes with which we are concerned, Section 5 of the Limitation Act or any other provision of the Limitation Act are inapplicable and in the light of specific period of limitation within which revision could have been filed, question of waiving the period of limitation under Section 6A of the Act would not arise. 6. In support of his contention, he places reliance on series of Judgments which are as under : i. Fateh Singh & Ors. v. Jagannath Bakhsh Singh & Another, 1925 P.C. 55, ii. Abdul Hamid Sardar v. Hon’ble Sir Bejoy Chand Mahatap & Ors., 36 CWN 238 ; iii. A.V. Venkateswaran Collector of Customs Bombay v. Ramchand Sobhraj Wadhwani & Anr. AIR 1961 S.C. 1506 iv. Smt. Sushila Devi v. Ramanandan Prasad & Ors., AIR 1976 S.C. 177 , v. M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. AIR 1979 S.C. 621 , vi. Sakura v. Tanaji, AIR 1985 S.C. 1279 ; vii. AIR 1961 S.C. 1506 iv. Smt. Sushila Devi v. Ramanandan Prasad & Ors., AIR 1976 S.C. 177 , v. M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. AIR 1979 S.C. 621 , vi. Sakura v. Tanaji, AIR 1985 S.C. 1279 ; vii. West Bengal Headmasters’ Association & Ors. v. State of West Bengal & Ors., 1991(2) CLJ 188 ; viii. Union of India & Anr. v. Kiriloskar Pneumatic Co. Ltd. (1996) 4 SCC 453 . ix. P.K. Ramachandran v. State of Kerala & Anr. AIR 1998 S.C. 2276 , x. Krishna Bahadur v. Purna Theatre & Ors. (2004) 8 SCC 229 , xi. Mackintosh Burn Ltd. v. State of West Bengal & Ors., 2007(2) CHN 115 , xii. K. Vilasini & Ors. v. Edwin Periera & Ors. (2008) 14 SCC 349 , xiii. Municipal Corporation of Delhi v. Laxmi Narayan Tandon etc. etc., AIR 1076 S.C. 621. 7. As against this, Mr. Arindam Banerjee, learned counsel for the respondent No.1 relies on the Judgment in the case of Subramanian Swamy v. Manmohan Singh & Anr. reported in (2012) 3 SCC 64 . 8. The law written in the above decisions right from 1925 till 2008 relied upon by learned Senior Counsel clearly indicates how mere expression or passing remark or opinion could be considered if there is no express opinion positively deciding the real question of controversy, especially with regard to issue of limitation. So far as the proposition laid down in the above decisions, learned counsel Mr. Banerjee fairly submits that he has no quarrel with the said proposition and, according to him, having regard to serious consequences involved in the matter which would not only affect the interest of the parties concerned but also several others placed in the same situation as that of the writ petitioner, the matter needs to be looked at from a different angle in the light of penal consequences enumerated in the enactment, viz. Sections 13A and 13B of the Act which read as under : “13A, Offences – (1) Any offences committed by a promoter by violation of the provisions of subsection (1) of section 3, section 7, sub-sections (1) and (2) of section 8, section 9 and section 11 of this Act shall be cognisable and non-bailable offence. Sections 13A and 13B of the Act which read as under : “13A, Offences – (1) Any offences committed by a promoter by violation of the provisions of subsection (1) of section 3, section 7, sub-sections (1) and (2) of section 8, section 9 and section 11 of this Act shall be cognisable and non-bailable offence. (2) Any offence committed by a promoter by violation of the provisions under section 10, and section 12, of the Act shall be non-cognisable and bailable offence. 13B. Penalties.- (1) Any promoter who fails to comply with the provisions under sub-section (1) of section 3 of this Act or the rules made thereunder, shall, on conviction, be punished with imprisonment of either description for a term not being less than six months which may extend to five years or with fine which may extend to fifty thousand rupees or with both: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding fifty thousand rupees. (2) Any promoter who fails to comply with, or contravenes, the provisions of section 7, subsections (1) and (2) of section 8, section 9, or section 11, of this Act, or the rules made thereunder, shall on conviction, be punished with imprisonment of either description for a term, not being less than three months which may extend to four years or with fine which may extend to twenty-five thousand rupees or with both ; Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding twenty-five thousand rupees. (3) Any promoter who fails to comply with, or contravenes, the provisions of section 10 or section 12 of this Act or the rules made thereunder, shall on conviction, be punished with imprisonment of either description for a term, not being less than three months, which may extend to three years or with fine which may extend to ten thousand rupees or with both. (4) Any person who violates the provisions of any other section of this Act shall, on conviction, be punished with imprisonment of either description for a term, not being less than one month, which may extend to two years, or with fine which may extend to five thousand rupees or with both”. 9. (4) Any person who violates the provisions of any other section of this Act shall, on conviction, be punished with imprisonment of either description for a term, not being less than one month, which may extend to two years, or with fine which may extend to five thousand rupees or with both”. 9. Reading of the above two provisions indicate lodging of a complaint against the promoter, if an offense could be made out, as contemplated in the enactment in question. Ultimately, it is for the Magistrate or the Authority who takes cognizance of the offence is to look into the matter and decide whether the cognizance of the offence can be taken or not. This exercise has to be based on the averments of the complaint untramelled by any of the observations made earlier by the Authorized Officer or by this Court, even if it were to be passing remarks. This independent right of the complainant has nothing to do with the civil consequences which were fought till now between the parties. Therefore, the magistrate concerned has to take independent decision based on the contents of the complaint while taking cognizance of the offence. With these observations, we allow both the appeal and the application and set aside the order of the learned Single Judge. The appeal, application and also the writ petition are disposed of accordingly.