IN THE GAUHATI HIGH COURT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH) Writ Appeal No.201 of Appellant : Sri Dharma Oja alias Dharma Kanta Oja, Son of Late Amulya Oja, Resident of Fatahati, Barpeta, P.O., P.S. & District Barpeta, Assam. By Advocates : Mr. N. N. Karmakar, Mr. M. K. Sah, Dr. A. Sah. Respondent: -versus- Sri Nanda Ram Oja, Son of Late Rajendra Nath Ojah, Resident of Kalayahati, Sundaridia, P.O., P.S. & District Barpeta, Assam. By Advocates: Mr. R. Dubey, Mr. M. Mahanta. BEFORE THE HON BLE MR. JUSTICE A. K. GOEL THE HON BLE MR. JUSTICE AMITAVA ROY Date of hearing : Date of delivery of judgment : Page 1 of 12

2 2 JUDGMENT AND ORDER (oral) (A. K. Goel, J.) 1. This appeal has been preferred against the order of learned Single Judge dismissing the writ petition i.e. WP(C) No.1941 of 2001, which was preferred against the order of civil Court holding the same as not maintainable. 2. The appellant is a tenant under the respondent who filed a suit for eviction of the appellant under the provisions of Section 5 of the Assam Urban Areas Rent Control Act, This aspect was considered under issue No.2 and the learned Civil Court held that the appellant was a defaulter on account of non-payment of rent. Accordingly, the decree for eviction was granted in favour of the respondent. The said decree was affirmed in appeal by the learned Civil Judge exercising powers of appellate Court under Section 8 of the Act. Aggrieved thereby, the appellant filed the writ petition in this Court under Article 226 of the Constitution of India. 3. The learned Single Judge held that the State or its instrumentalities or other authorities were not party and the judgment was of Civil Court and on that ground the writ petition was dismissed. Hence, this appeal. Page 2 of 12

3 3 4. We have heard Mr. N. N. Karmakar, learned counsel for the appellant, and Mr. R. Dubey, learned counsel for the respondent. 5. Learned counsel for the appellant submits that the writ petition was maintainable as the Court exercising jurisdiction under the provisions of the Act was not acting as Civil Court but as revenue Court as defined under Section 5 of the Code of Civil Procedure. He also submits that the Hon ble Supreme Court in its order dated (Subodh Chandra Dev vs., State of Assam and others) while considering a similar matter held that a writ petition was maintainable against the final order under the Act. He, however, fairly submits that even after considering the said order of the Hon ble Supreme Court, a Division Bench of this Court in Ranjit Kr. Dey & others vs. Krishna Gopal Agarwala & others, reported in 2004(2)GLT 435, held that a revision petition under Section 115 of the Code of Civil Procedure will lie against a final order under the Act. He also relies upon the judgment of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC On the other hand, learned counsel for the respondentlandlord supports the view taken in the impugned order and submits that a writ petition does not lie against order of a civil Court and only a revision petition will lie. The observation in the Page 3 of 12

4 4 order of the Supreme Court in Subodh Chandra Dev vs., State of Assam and others relied upon by the learned counsel for the landlord is in conflict with the settled law on the point and the said observation could not be treated as binding precedent under Article 141 of the Constitution of India. 7. The question, which arises for consideration, is whether a writ petition will lie against a final order passed by the civil court under the provisions of the Act or only remedy will be by way of a revision petition? 8. In our view, the answer has to be against the appellant and in favour of the respondent. It is well settled that order of a civil Court is not amenable to writ jurisdiction. Such order has to be challenged by way of an appeal or revision and if is allowed to be final, the writ petition may be barred by res judicata. Reference may be made to Naresh Shridhar Mirajkar and others vs. State of Maharashtra and another, reported in AIR 1967 SC 1, to this effect. Therein, it was observed : certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction. 9. Reference may also be made to observation in Poonam vs. Sumit Tanwar, reported in (2010)4 SCC 460 : Page 4 of 12

5 5 13. It is a settled legal proposition that the remedy of a person aggrieved by the decision of the competent judicial tribunal is to approach for redress a superior tribunal, if there is any, and that order cannot be circumvented by resorting to an application for a writ under Article 32 of the Constitution. Relief under Article 32 can be for enforcing a right conferred by Part III of the Constitution and only on the proof of infringement thereof. If by adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition under Article 32 of the Constitution is not maintainable. It is not generally assumed that a judicial decision pronounced by a court may violate the fundamental right of a party. Judicial orders passed by the court in or in relation to proceeding pending before it are not amenable to be corrected by issuing a writ under Article 32 of the Constitution. (Vide Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of Madhya Bharat [AIR 1960 SC 786]; Ujjam Bai v. State of U.P.[AIR 1962 SC 1621] and Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1]. 10. Again in Mosaraf Hossain Khan vs. Bhagheerat Engg. Ltd. and others, reported in (2006)3 SCC 658, it was observed : A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Constitution against a judicial officer. (See Naresh Shridhar Mirajkar v. State of Maharashtra [(1966)3 SCR 744 : AIR 1967 SC 1]. However, we are not oblivious of a decision of this Court in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] wherein this Court upon noticing Naresh Shridhar Mirajkar [(1966)3 SCR 744 : AIR 1967 SC 1] Page 5 of 12

6 6 and also relying on a Constitution Bench of this Court in Rupa Ashok Hurra v. Ashok Hurra [(2002)4 SCC 388] opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh v. Ravi Prakash [(2004) 3 SCC 682]. It is, however, not necessary to dilate on the matter any further. 11. The observations in Surya Dev Rai (supra) have been made in the context of remedy of revision under Article 227 in absence of any other provision. In the present cast, undisputedly, remedy of revision is available to the appellant. If the said remedy is not taken, the writ petition will be barred by res judicata. 12. As regards the order in Subodh Chandra Dev(supra) there is no discussion on the issue except noting that notice was issued confined to the question whether the matter be remanded back to the High Court for deciding the writ petition treating the same as revision. Further observation therein to the effect that a writ petition will be maintainable against final order of the authority under the Act cannot be read as reversing the law settled by a larger Bench to the effect that an order of civil Court is not amenable to writ jurisdiction as the same can be challenged as per hierarchy of Courts and if the said order is to be read otherwise, the same may be per incurium or sub silentio having Page 6 of 12

7 7 not referred to settled law and having not discussed the principle involved. In this regard, it was observed in State of U.P. and others vs. Jeet S. Bisht and another, reported in (2007)6 SCC 586 : 18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio. The meaning of a judgment sub silentio has been explained by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur (vide paras 11 and 12) as follows :.. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentiio. In Gerard v. Worth of Paris Ltd. the only point argued was on the question of priority of the claimant s debt, and, on this argument being heard; the court granted the order. No consideration was given to the whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor C. (London) Ltd. v. Page 7 of 12

8 8 Bremith Ltd. the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could made the order which it did, nevertheless, since it was decided without argument, without reference to the crucial words of the rule, and without any citation of authority, it was not binding and would not be followed. Precedents sub silentiio and without argument are of no moment. This rule has ever since been followed. 13. Relevant statutory provisions of the Act are as follows : 4. Procedure of determination of fair rent : (1) If any dispute arises regarding the rent payable in respect of any house, it shall be determined by the Court. (2) The Court shall on application made by either the landlord or the tenant issue notice on both the parties, and after making such enquiry as it thinks fit determine the monthly rent for the house in accordance with the provisions of Section 3 and the rent so determined shall be binding on both parties. (3) Where the Court determines the monthly rent for any house under this Section, it shall do so for the house in the unfurnished state, but it may allow the landlord to charge an additional amount per month on account of the furniture supplied by him : Provided that such additional amount shall not exceed one-twelfth of seven and half per cent of the cost Page 8 of 12

9 9 of such furniture on the date on which the Court determines the monthly rent for the house. 5. Bar against passing and execution of decree and orders for ejection :-- (1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy: Provided that nothing in the sub-section shall apply in a suit or proceedings for eviction of the tenant from the house :- (a) Where the tenant has done anything contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 1882 (Central Act 4 of 1882) or to the spirit of the aforesaid clause in areas where the said Act does not apply, or (b) where the tenant has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoining or neighbouring houses, or (c) where the house is bonafide require by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court, or (d) where the tenant sublets the house or any part thereof or otherwise transfers his interest in the house or any part thereof without permission in writing from the landlord, or (e) where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or Page 9 of 12

10 10 (f) where the tenant has built acquired or been allotted a suitable residence. (2) The transfer of the interest of the landlord in the house shall not affect the right of the tenant provided the tenant pays rent allowable under this Act to the transferee. (3) Where the landlord recovers possession of a house from a tenant on the ground that the house is bonafide required by him for purpose of repairs or rebuilding or for his own occupation or for the occupation of any person for whose benefit the house is held, and the repairs or the rebuilding of the house is not commenced or the house is not occupied by the landlord or such person within fifteen days of the date of vacation of the house by such tenant or the house having been so occupied is within six months of the said date re-let to or allowed to be possessed by any other person, the Court may, on the application of the evicted tenant made within seven months of his vacating the house, direct the landlord to put the evicted tenant in possession of the house within such period as the Court may fix and to pay him such compensation as appears to the Court to be reasonable and proper. Such a direction shall be deemed to be a decree under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) and to be capable of execution of such under the provisions of that Code. (4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of Page 10 of 12

11 11 the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this Section. 8. Appeals :- A landlord or a tenant aggrieved by any decision or order of the Court under the provisions of Sections 4, 5 and 7(2) of this Act shall have a right of appeal against the same as if such decision or order were a decree in a suit for ejectment of the tenant from the house and such appellate Court s decision shall be final. 14. Thus, under the scheme of the Act the authority dealing with the matter is civil Court. 15. As regards Section 5 of the CPC, relied upon by learned counsel for the appellant, for submitting that a civil Court exercising jurisdiction under a local law has to be treated as Revenue Court and not the Civil Court, we are of the view that this contention is misconceived. Section 5 deals with the issue of application of the Code of Civil Procedure to revenue court and in that context revenue court has been defined. It cannot be held that civil Court exercising jurisdiction with reference to any local law ceases to be civil Court. 16. Learned counsel for the appellant also stated that if a writ petition is otherwise maintainable against the order of tribunal, Page 11 of 12

12 12 the omission to make the State as a party would not affect maintainability. This question loses significance in view of our finding that the writ petition itself is not maintainable against the order of the civil Court. 17. In view of the above, we do not find any merit in this appeal. The appeal stands dismissed. JUDGE JUDGE TUC Page 12 of 12