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2017 DIGILAW 983 (CAL)

Kabita Das v. Subrata Sarkar

2017-12-14

HARISH TANDON

body2017
JUDGMENT : HARISH TANDON, J. 1. Both the revisional applications are taken up together for the sake of convenience and to avoid the prolixity of repetition of facts. Both the revisional applications are launched by the preemptors/petitioners challenging two independent orders, namely, an order, by which a direction was passed upon them to deposit the market price of the land being the subject matter of the preemption application and other one relates to the dismissal of the main proceeding itself because of non-compliance of the earlier order. 2. At the first blush this Court was of the view that the later order by which the main preemption application was dismissed is appealable one and the revisional application, therefore, is not maintainable. 3. The learned Advocate appearing on behalf of the petitioners invites my attention to various judgments of the Court, wherein it is held that mere existence of an alternative efficacious remedy cannot deter the High Court to exercise the power of superintendence enshrined under Article 227 of the Constitution of India. It is, thus, submitted by the petitioners that if the Court finds that there is manifest injustice apparent on the face of the record, the Court can interfere with the order, irrespective of the fact that such order is amenable to be challenged by way of an appeal, under Article 227 of the Constitution of India. 4. Before I proceed to deal with the other submissions advanced by the respective Counsels, the judgment relied upon by the petitioners in this regard needs to be noticed as it strikes at the jurisdiction of the Court to entertain the revisional application under the aforesaid provision. In case of Ramesh Chandra Sankla and others v. Vikram Cement and others., reported in (2008) 14 Supreme Court Cases 58, the Apex Court succinctly decided the powers conferred upon the High Court under Articles 226 and 227 of the Constitution of India and held that it is no doubt discretionary and equitable but the same is to exercise ex debito justitiae that is to meet the ends of justice in the following words: "90. Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey v. State observed: (AIR p. 792, para 10) "10. ... Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey v. State observed: (AIR p. 792, para 10) "10. ... There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein." (emphasis supplied) 91. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a Court of law but also as a Court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must "advance the ends of justice and uproot injustice". 92. In Roshan Deen v. Preeti Lal, dealing with an order passed by the High Court setting aside an order of the Commissioner for Workmen's Compensation, this Court stated: (SCC p. 106, para 12) "12. ... Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance' justice and not to thwart it (vide State of U.P. v. District Judge, Unnao). The every purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law." (emphasis supplied) 93. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law." (emphasis supplied) 93. In Gadde Venkateswara Rao v. Govt. of A.P., a primary health centre was formerly inaugurated at village 'A' subject to certain conditions. Since those conditions were not satisfied, it was resolved by the Panchayat Samithi to shift it to village 'B'. The Government set aside the said resolution without giving notice to the Samithi. Subsequently, however, the Government reviewed the said order without giving opportunity of being heard to the affected persons. The action was challenged in the High Court. The High Court held that the order passed by the Government on review was bad. It, however, did not interfere with the order on merits. In this Court it was contended that an order passed on review by the Government was illegal since no opportunity of hearing was afforded and the High Court was wrong in not setting aside the said order. This Court, however, did not interfere with the order passed by the High Court observing that "if the High Court had quashed the order passed by the Government, it would have restored an illegal order and would have given the health centre to a village contrary to the valid resolutions passed by the Panchayat Samithi". In the opinion of this Court, therefore, the High Court was right in refusing to exercise discretionary power in the circumstances of the case." 5. The law enunciated in the above report is that there, is no absolute bar upon the High Court to entertain an application under Article 227 of the Constitution of India, wherein the challenge is made to an order, which is otherwise amenable to be challenged by way of an appeal before the appellate forum if there is a patent error or miscarriage of justice apparent from the record. It can also be exercised for ends of justice, as a litigant should not suffer for the act of the Court. The power under Article 227 is no doubt discretionary and equitable yet wide and intended to advance the ends of justice and uproot injustice. 6. It can also be exercised for ends of justice, as a litigant should not suffer for the act of the Court. The power under Article 227 is no doubt discretionary and equitable yet wide and intended to advance the ends of justice and uproot injustice. 6. The matter can be viewed from another angle as well, more particularly, on the basis of another judgment of the Supreme Court rendered in case of Sameer Singh and another v. Abdul Rab and others., reported in (2015) 1 Supreme Court Cases 379. In the said report the application under Order XXI Rule 101 of the Code was filed before the executing Court, which was dismissed solely on the ground that after passing the decree the Court becomes functus officio. The said order was held to be an order not on merit but on technicality and despite the remedy available in view of Rule 103 of the Code, the Apex Court held that the revisional jurisdiction can be invoked in these words: "26. The aforesaid authorities clearly spell out that the Court has the authority to adjudicate all the questions pertaining to right, title and interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained code, as has been emphasised by this Court, enjoins the executing Court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing Court. Order 21 Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing Court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing Court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing Court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing Court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai. 27. Whether the executing Court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate Court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury. The same principle has been reiterated in Keshardeo Chamria v. Radha Kissen Chamria and Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi. Needless to emphasise, the said principle is well settled. After the amendment of Section 115, CPC w.e.f. 1-7-2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai. Had the executing Court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication." 7. It is, therefore, to be seen whether there is an apparent miscarriage of justice or injustice done to the petitioners by an act of the Court either in discharge of their judicial functions or otherwise. It is, therefore, to be seen whether there is an apparent miscarriage of justice or injustice done to the petitioners by an act of the Court either in discharge of their judicial functions or otherwise. The earlier order, which is challenged in one of the revisional application, relates to a direction upon the petitioners to deposit the present market value of the property sought to be preempted under Section 8 of the West Bengal Land Reforms Act, 1955. 8. Without venturing to go into the nuances of law and the interpretation of various provisions, the matter can be set at rest as this Court has an occasion to deal with the identical point in Pradipta Padha v. Laxmi Kanta Maity, reported in 2015 (3) Calcutta High Court Notes 196 (Cal). It is held therein that since last three decades there has been a uniform view that the deposit of the market value is not sine qua non or condition precedent to maintain the application for preemption under Section 8 of the West Bengal Land Reforms Act, 1955. The relevant excerpts from the said judgment is quoted as under: "10. Since last three decades, it is a consistent view that non-deposit of full consideration money is not fatal to an application under Section 8 of the West Bengal Land Reforms Act as the said provision does not imbibe within itself any penal consequences. Neither in Section 8 nor in Section 9 of the West Bengal Land Reforms Act, the word 'preemption' is used though they sought to achieve such purposes. The right is conferred on the bargadar, co-sharer and the raiyat at possession land adjoining to such plot of land which is transferred to any person other than the co-sharer of the raiyat in the plot of land, to apply for transfer. Section 9(1) of the said Act makes it imperative for notice of the application to the transferee or any person interested and to prove consideration money paid for the transfer and other sums. Section 9(1) of the said Act makes it imperative for notice of the application to the transferee or any person interested and to prove consideration money paid for the transfer and other sums. In respect of the lands including any paid for annulling encumbrances created prior to the date of transfer and after making an Inquiry, the Munsif may direct the applicant to deposit such further sum within the time specified by him and after the deposit of such sum shall make the order for payment of the sum to the transferee or the person interested and shall make the further order for transfer of the portion or share of the plot of land in favour of the applicant. Therefore, the deposit of money is relatable to a transfer and not at the time of making the application. 11. The conjoint reading of the aforesaid provision shown that the transfer may be ordered only on deposit of the consideration money so determined by the Munsif and any other sums together with the compensation being 10% of that amount. Unless the adjudication is made over the entitlement of the applicant to seek transfer under Section 8(1) of the said Act, it is not imperative to deposit the consideration money along with the application. 12. The uniform view which is prevalent since last three decades and applicable in the field and is settled; should not be disturbed. The doctrine of stare decisis is based on the legal maxim "stare decisis et non quieta movere" which means to stand by the decisions rather to disturb if what is settled. Lord Coke aptly described the said doctrine in his classic English version as "those things which have been so often adjudged ought to rest in peace". The Supreme Court in case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, reported in (2005) 8 SCC 534 held: "Stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, state policy and judicial conscience." 13. The aforesaid doctrine is explained and applied in Indian Law by the Supreme Court in case of Shanker Raju v. Union of India, reported in (2011) 2 SCC 132 , in the following: "14. The aforesaid doctrine is explained and applied in Indian Law by the Supreme Court in case of Shanker Raju v. Union of India, reported in (2011) 2 SCC 132 , in the following: "14. In Krishena Kumar v. Union of India this Court has explained the meaning and importance of sparing (sic adhering to) application of the doctrine of stare decisis: "33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of Courts is to stand by precedent and not to disturb settled point. When Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it." 15. In Union of India v. Paras Laminates (P) Ltd. this Court observed as under: "9. It is true that a Bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. It is true that a Bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or Courts have a right to expect that those exercising judicial functions Will follow the reason or ground of the judicial decision in the earlier cases on identical matters." It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest Court, in spite of a ruling to the contrary, in the hope that the decision may be overruled. 18. The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. The pronouncement of law by a larger Bench of this Court is binding on a Division Bench of this Court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. We further add that it would be inappropriate to reagitate the very issue or a particular provision, which this Court had already considered and upheld."" 9. It is axiomatic to record that the judgment rendered by the High Court laying down the law binds the sub-ordinate Courts and they could not travel beyond the ratio laid down therein. The nectar of the judgment rendered in case of Pradipta Padha (supra) is that legislatures never imposed any condition upon the preemptor to deposit the market rent or the consideration money mentioned in the deed to maintain the application under Section 8 of the West Bengal Land Reforms Act, 1955. If the trial Court has acted contrary to the ratio of law laid down by the High Court, such judgment is not only erroneous but perverse in the sense that it does not take into account the judgment of the High Court. 10. The order dated 10th August 2016, therefore, cannot be sustained and is hereby set aside. If the trial Court has acted contrary to the ratio of law laid down by the High Court, such judgment is not only erroneous but perverse in the sense that it does not take into account the judgment of the High Court. 10. The order dated 10th August 2016, therefore, cannot be sustained and is hereby set aside. Since the Court has dismissed the preemption application solely on the ground that the compliance to the aforesaid order has not been made, the said order cannot stand independently, and, accordingly, as the said order dated 10th August 2016 is also set aside. 11. However, the trial Court is directed to consider the preemption application on merit after affording an opportunity of hearing to the opposite parties as well as an opportunity to file written objection to the application under Section 8 of the West Bengal Land Reforms Act, 1955. Efforts shall be made by the trial Court to dispose of the proceeding as expeditiously as possible. 12. With these observations, both the revisional applications are disposed of. There shall, however, be no order as to costs.