Vijay Kumar Kichlu v. Life Insurance Corporation of India
2016-05-11
SIDDHARTHA CHATTOPADHYAY
body2016
DigiLaw.ai
JUDGMENT : Siddhartha Chattopadhyay, J. 1. This revisional application has been filed for quashing the order dated 31.10.2015 passed by the learned Estate Officer of the opposite party in connection with the proceeding bearing No. E.O./421/0813 under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. 2. According to the petitioner/opposite party i.e. Life Insurance Corporation of India instituted the said proceedings for eviction of the present petitioner on multifarious grounds such as for revision of rent with effect from 01.04.2002 and for execution of a fresh lease agreement and it was also contended in the said proceeding that the present petitioner is a defaulter since April 2002 and that the opposite party was entitled to terminate the lease in respect of the suit premises being Flat No. 5, at 13, Loudon Street, Calcutta – 700017. Such notice was issued on February 24, 2011 and the opposite party alleged that the petitioner is an unauthorized occupant of the said premises. 3. Challenging the same he had filed a Title Suit bearing No. 674 of 2011 before the learned Judge 6th Bench, City Civil Court, claiming a decree of declaration that he is the monthly tenant of the suit property and that the purported notice dated 24th February, 2011, is void ab initio and to cancel the said notice as well as permanent injunction restraining the defendant corporation from disturbing and interfering with his peaceful use and occupation of the suit property. Initially he was granted an interim injunction which has been extended time to time. On 3rd June, 2013, due to cease work of the bar of the City Civil Court, no step could be taken for extension of the said interim order on rd June, 2013. After getting the notice of eviction from the Estate Officer, he had filed an application on 04.12.2013 praying for summary disposal of the said eviction proceeding and cancellation of the show cause notice dated 17.08.2013 issued by the learned Estate Officer. After taking adjournments the opposite party (Life Insurance Corporation of India) filed a written objection and as against this present petitioner filed a rejoinder to the said written objection. Hearing commenced at the instance of the learned Estate Officer. Sometimes learned Estate Officer was not available and the parties had taken adjournments time to time.
After taking adjournments the opposite party (Life Insurance Corporation of India) filed a written objection and as against this present petitioner filed a rejoinder to the said written objection. Hearing commenced at the instance of the learned Estate Officer. Sometimes learned Estate Officer was not available and the parties had taken adjournments time to time. On 30.09.2015 learned Estate Officer has fixed date for hearing on the maintainability petition as a last chance and on that day the petitioner’s learned Advocate did not appear. Accordingly, learned Estate Officer, (despite being given opportunities the petitioner did not take part in argument) he had recorded that it would not be appropriate to extend further opportunity and reserved the order. However, on 31.10.2015 he had proceeded to pass the impugned order which purports to be final order in the eviction proceedings. Therefore, a technical problem arose that in the entire order sheets one i.e. page No. 19 was missing and as a consequence the present petitioner demanded a complete order from the learned Estate Officer. On 09.11.2015 the learned Estate Officer forwarded a copy of page 19 of the impugned order. 4. According to the petitioner, the impugned order is manifestly vitiated by material irregularity in the exercise of the learned Estate Officer jurisdiction under the Public Premises (Eviction of Unauthorized Occupants) Act 1971. In the impugned order the learned Estate Officer has recorded that the petitioner was not attending the hearing to complete his arguments on the maintainability application and he reserved his order on the maintainability application. According to the petitioner, the learned Estate Officer ought not to have disposed of the main matter without considering the maintainability petition. Ventilating his such grievances along with the grievance that he was not given an opportunity to cross-examine the witnesses of the opposite party, the learned Estate Officer came to a finding which is anything but fair. Ventilating all his grievances, he has prayed for dismissal of the said order. 5. Learned Counsel appearing on behalf of the opposite party seriously challenged the said contention of its adversary and made a forceful submission that the Estate Officer had given enough opportunities to the present petitioner but he did not take part in the said hearing. He has filed an application for maintainability of the proceeding and, thereafter, he sat tight over the issue and never pursued his application.
He has filed an application for maintainability of the proceeding and, thereafter, he sat tight over the issue and never pursued his application. Since, the petitioner did not take part in the proceeding, learned Estate Officer had no other option left with except to proceed with the eviction proceeding. He also contended that opportunities were given but the petitioner himself did not utilise those opportunities and now he is at his own perils. His main argument was such that there is a provision in the Act itself that the aggrieved party may file an appeal before the appropriate authority but without choosing that forum he has come before this Court. 6. It was vehemently argued by the learned Counsel appearing on behalf of the opposite party that when there is speedy and efficacious remedy available, in that case High Court should not interfere with and shall not invoke its jurisdiction under Article 227 of the Constitution of India. He contended that there are catena of decisions wherein this Hon’ble Court as well as Apex Court had set at rest by coming to a finding that if a statue provides any specified remedy in the Act itself and if it is found efficacious remedy, in that case party has to ventilate his grievance before the concerned authority. 7. Learned Counsel appearing on behalf of the petitioner has submitted that High Court can entertain such application being the highest Court of record of the state and as it exercises its superintendence over all the Courts and tribunal of the state. He relied on the decisions reported in 2014 (1) CHN Cal 584 (Gopal Das Vs. Ajay Mukherjee) wherein a Co-ordinate Bench of this Court held that existence of alternative remedy by itself may not be a ground for High Court to refuse to exercise its jurisdiction under Article 227 of the Constitution of India, if it can be shown that any of the following conditions are fulfilled namely :- (i) Such alternative remedy may not be an efficacious one, or, (ii) The order was passed by an authority without jurisdiction, or, (iii) An order has been passed by an authority in violation of the principles of natural justice. 8. Learned Counsel appearing on behalf of the relied on the decision reported in 2013 (4) CHN Cal 230 (Manager Additional Office III National Insurance Company Limited Vs. Subrata Baran Sen).
8. Learned Counsel appearing on behalf of the relied on the decision reported in 2013 (4) CHN Cal 230 (Manager Additional Office III National Insurance Company Limited Vs. Subrata Baran Sen). In the said decision, another Coordinate Bench of this Court held that mere existence of an alternative remedy does not prevent the High Court to exercise its power under Article 227 of the Constitution of India because it is very wide and discretionary too. In course of discussion, the said Co-ordinate Bench held that it is a self-imposed restriction which High Court must consider if the alternative remedy is sufficient to grant relief claimed by the petitioner before it. It has been laid down therein that the power of High Court under Article 227 of the Constitution is not taken away in view of the existence of alternative remedy. At the same time, the Co-ordinate Bench also held while exercising it’s power under Article 227 of the Constitution, the High Court must be slow and circumspect in judging the cause to avoid the reapprisal of the fact. High Court can also exercise its power under Article 227 of the Constitution if there is an error manifest on the face of it or for ends of justice. Therefore, ratio of the said judgment does not reveal that power of the High Court under Article 227 of the Constitution of India has to be exercised mechanically on a wholesale basis. In the judgment reported in 2012 (1) CHN (Cal) page 543 (Auro Developers Vs. Mala Mukherjee.) it has been contended that availability of an alternative remedy by itself may not be the grounds for High Court to refuse to exercise its jurisdiction under certain circumstances which has been reiterated in the judgment reported in 2014 (1) CHN Cal 584 (Gopal Das Vs. Ajay Mukherjee.). 9. Learned Counsel appearing on behalf of the petitioner has referred to a decision reported in (1998) 8 SCC Page 1 (Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.).
Ajay Mukherjee.). 9. Learned Counsel appearing on behalf of the petitioner has referred to a decision reported in (1998) 8 SCC Page 1 (Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.). In that decision Hon’ble Apex Court clearly held at Page 10 Para 15 “But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” As against this learned Counsel appearing on behalf of the opposite party has relied on the decision reported in (2005) 8 SCC Page 264 (U.P. State Spinning Company Limited Vs. R.S. Pandey & Anr.) In the said judgment of the Hon’ble Apex Court the decision of (1998) 8 SCC Page 1 (Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.) was taken into consideration and the Hon’ble Apex Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. 10. There are two well-recognized exceptions to the doctrine of exhaustion of statutory remedies first is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent, without a party being obliged to wait, until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. Hon’ble Apex Court has also decided in clear terms that High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the affairs, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided in the statute. It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.
It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy. Learned Counsel appearing on behalf of the opposite party also relied on decision reported in (1) 1999 (2) Calcutta Law Times HC 478 [Khaitan (India) Limited & Ors. Vs. Union of India & Ors.], (2) (2012) 2 W.B.L.R. (SC) 38 (Nivedita Sharma Vs. Cellular Operators Assn. of India & Ors.), (3) (2013) 16 SCC 1 (Arcot Textile Mills Limited Vs. Regional Provident Fund Commissioner & Ors.), (4) (2013) 16 SCC 1 16 (Union of India & Ors. Vs. Sanjay Jethi & Anr.), (5) (2014) 8 SCC 470 (Subrata Roy Sahara Vs. Union of India & Ors.), (6) AIR 1996 SC 1669 (State Bank of Patiala & Ors. Vs. S.K. Sharma), (7) 2008 (1) CHN (Asst. P.F. Commissioners, Employees’ Provident Fund Organisation Vs. Pawan Kumar Agarwala & Ors.), (8) 2014 (1) CHN (Cal) 675 : (2014) 1 WBLR (Cal) 692 (Basant Pran & Co. Vs. R.C. Walia.), (9) 2014 (3) CHN (Cal) 57 (National Insurance Company Limited Vs. Consumer Disputes Redressal Forum.), (10) (2013) 16 SCC 771 (Mahipal Singh Tomar Vs. State of Uttar Pradesh & Anr.). The ratio cination of those aforesaid judgments will go to show that if any order is passed beyond jurisdiction by any authority in that case High Court must entertain the application under Article 227 of the Constitution of India and if there is any violation of principles of natural justice. 11. In this instant case in hand, I find that Estate Officer has issued a notice to show cause but without filing a show cause the present petitioner has filed an application for maintainability of the proceeding. Chances were given to the present petitioner to appear before the Estate Officer and to make their submissions. Curiously enough, the petitioner did not pursue the said litigation pending before the Estate Officer wholeheartedly. Therefore, the Estate Officer has passed the impugned order. Needless to say that Estate Officer passed the order and it had jurisdiction to pass such order. At the same time, by calling the present petitioner to appear before him and to file written objection goes to show that the principles of natural justice has not been violated. The concept of principles of natural justice has undergone a radical change.
Needless to say that Estate Officer passed the order and it had jurisdiction to pass such order. At the same time, by calling the present petitioner to appear before him and to file written objection goes to show that the principles of natural justice has not been violated. The concept of principles of natural justice has undergone a radical change. It is not in every case, that the High Courts would entertain a writ application on the ground that violation of principles of natural justice has been alleged. Before complaining about the violation of the principles of natural justice one must show causation of a prejudice against him by reason of such violation. If there was no notice, no opportunity was given for hearing, only in that case High Court can invoke its jurisdiction under Article 227 of the Constitution of India. 12. On perusal of the records and after going through the impugned order, I find that the Estate Officer had every jurisdiction to pass such order and since he has afforded an opportunity to take part in hearing to the present petitioner, there is no violation of principles of natural justice. In my view the appropriate forum is the Appellate Authority. The present petitioner is however, at liberty to prefer an appeal before the competent authority, if so advised, and in that case the appellate authority shall consider the fact that the revisional application was filed and pending before this Court for a considerable period and this period will be excluded at the time of reckoning period of limitation. The learned Appellate Authority shall give an opportunity to the petitioner, if such application is filed, within a month from this date. Therefore, the revisional application merits rejection but without cost. 13. There may be divergent decisions between the learned Judge 6th Bench, City Civil Court and the learned Appellate Court and considering this practical aspect, the suit pending before the City Civil Court bearing No. 674 of 2011 be stayed till the dispute is decided by the Appellate Authority. 14. Let a copy of this judgment be sent to the learned Court below as well as learned Estate Officer for their information and taking necessary action in accordance with law. 15. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.