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High Court Of Calcutta
Bhaskar Bhattacharya And Prabuddha Sankar Banerjee, JJ.
KANAK PROJECTS LTD. - Appellant
Versus
AMRITA BAZAR PATRIKA PVT.LTD. - Respondent
W. P. 1592 Of 2006
Decided On : 11/22/2006
DEBT RECOVERY TRIBUNAL - JURISDICTION - WRIT PETITION - MAINTAINABILITY - SCOPE OF ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA - DISTINCTION - INTERLOCUTORY JUDICIAL ORDER OF TRIBUNAL - CHALLENGE - APPROPRIATE PROVISION - ARTICLE 227 - EXERCISE OF POWER UNDER ARTICLE 227 - PART OF CIVIL OR CRIMINAL REVISIONAL JURISDICTION OF APPELLATE SIDE OF HIGH COURT - COMBINED APPLICATIONS UNDER ARTICLES 226/227 - PRACTICE DEPRECATED - COURT FEES - VARYING ACCORDING TO NATURE OF WRITS PRAYED FOR OR NATURE OF ORDER IMPUGNED - FIXED COURT FEE PAYABLE ON APPLICATION UNDER ARTICLE 227 - RULES FRAMED BY HIGH COURT - EXERCISE OF POWER UNDER ARTICLE 227 BY JUDGE SITTING IN ORIGINAL SIDE - NO SCOPE - COMBINED APPLICATION UNDER ARTICLES 226/227 AGAINST ORDERS OF TRIBUNALS CONSTITUTED UNDER ARTICLES 323A/323B OF CONSTITUTION - APPROPRIATE CASES - DIVISION BENCH IN ORIGINAL SIDE - DEBT RECOVERY TRIBUNAL - NOT SUCH A TRIBUNAL - DETERMINATION UNDER ARTICLE 227 - NOT CONFERRED UPON JUDGE BY HON'BLE CHIEF JUSTICE - INHERENT LACK OF JURISDICTION TO ENTERTAIN APPLICATION UNDER ARTICLE 227 - CONVERSION OF APPLICATION UNDER ARTICLE 226 TO ONE UNDER ARTICLE 227 - NOT PERMISSIBLE - EXERCISE OF POWER OF SUPERINTENDENCE BY EXERCISING AUTHORITY UNDER ARTICLE 227 - WRITS IN NATURE OF MANDAMUS, PROHIBITION AND CERTIORARI PRAYED FOR - NO WRITS ISSUED - GUIDING DIRECTION UPON TRIBUNAL - JURISDICTIONAL ERROR - ORDER SET ASIDE - TRIBUNAL DIRECTED TO PROCEED IN ACCORDANCE WITH LAW - SUBSEQUENT ORDERS EXTENDING ORDER OF STATUS QUO BY TRIBUNAL - NOT CHALLENGED IN FIRST WRIT APPLICATION - INSTRUCTION NOT TO PRESS OTHER WRIT APPLICATION WHEREIN INTERIM ORDER WAS GRANTED - WRIT APPLICATION DISMISSED AS NOT PRESSED - GRANT OF INTERIM RELIEF TO WRIT PETITIONERS IN SECOND WRIT APPLICATION - NO SCOPE - EXISTING ORDER OF STATUS QUO GRANTED BY TRIBUNAL - VIOLATION - APPEALS ALLOWED WITH COSTS.
Fact of the Case:
Two writ applications were filed before a learned Single Judge of the Calcutta High Court during the Puja vacation. The first writ application challenged an order dated May 29, 2006 passed by the Debts Recovery Tribunal (DRT) by which the DRT passed an order of status quo on an application filed by the appellant for a limited period. The second writ application was moved on October 13, 2006, praying for a direction for taking effective steps for the completion of the sale of the property which was stayed by virtue of the existing order of status quo granted by the DRT.
Finding of the Court:
1. The first writ application was not maintainable under Article 226 of the Constitution of India as it was filed against a judicial order of the DRT. The appropriate provision applicable in such a case is Article 227 of the Constitution of India, which confers power of superintendence over all Courts and Tribunals on the High Courts. 2. The learned Single Judge did not have the inherent jurisdiction to entertain an application under Article 227 of the Constitution of India in the absence of conferment of such power by the Hon'ble Chief Justice. 3. The second writ application was also not maintainable as there was no scope of grant of any interim relief to the writ petitioners in view of the existing order of status quo granted by the DRT.
Issues: 1. Whether a writ petition under Article 226 of the Constitution of India is maintainable against a judicial order of the DRT? 2. Whether the learned Single Judge had the inherent jurisdiction to entertain an application under Article 227 of the Constitution of India in the absence of conferment of such power by the Hon'ble Chief Justice? 3. Whether the second writ application was maintainable in view of the existing order of status quo granted by the DRT?
Ratio Decidendi: 1. The scope of Articles 226 and 227 of the Constitution of India is different. Article 226 empowers the High Courts to issue writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose, while Article 227 vests the High Courts with the power of superintendence over all Courts and Tribunals. 2. The exercise of power under Article 227 of the Constitution of India is part of the civil or criminal revisional jurisdiction of the appellate side of the High Court, and a litigant, if dissatisfied with any order passed by a Judge in exercise of power under Article 227 of the Constitution of India, should approach the Supreme Court of India directly. 3. In the absence of conferment of determination under Article 227 of the Constitution of India by the Hon'ble Chief Justice, a Judge sitting in the Original Side has no jurisdiction to entertain an application under Article 227. 4. There is no scope of grant of any interim relief to the writ petitioners in a second writ application in view of the existing order of status quo granted by the DRT.
Final Decision: 1. The first writ application was allowed and the order passed by the learned Single Judge was set aside on the ground that an application under Article 226 of the Constitution of India is not maintainable against a judicial order of the Tribunal within the scope of the rules framed by this court and at the same time, His Lordship was not even authorised by the hon'ble Chief Justice to entertain an application under Article 227 and as such, His Lordship had inherent lack of jurisdiction to entertain the same after converting the same to an application under Article 227. 2. The second writ application was also allowed and the order passed by the learned Single Judge was set aside and the writ application was dismissed as not pressed.
( 1 ) THESE two mandamus appeals were taken up for hearing analogously as those were interlinked to some extent.
( 2 ) THE appeal, being A. P. O. No. 397 of 2006 arises out of a writ application numbered as W. P. No. 1592 of 2006 whereas the other one being A. P. O. No. 396 of 2006 crops out of a different writ application marked as W. P No. 1590 of 2006. Both the aforesaid writ applications were moved before a learned Single Judge of this Court during the Puja vacation. By the first writ application, the writ petitioners, the respondent Nos. 1 and 2 before us, challenged an order dated 29th May, 2006 passed by the Debts Recovery tribunal (hereinafter referred to as the Tribunal) by which the Tribunal passed an order of status quo on an application filed by the appellant before us for a limited period which was subsequently extended on different occasions and was continuing till the presentation of the writ application and 2nd november, 2006, was the next date fixed for hearing the application along with other applications after the Puja vacation before the Tribunal.
( 3 ) THE learned Single Judge, on the very first date of moving the said application,. e. October 11, 2006, disposed of the same by directing the tribunal not to extend the order of status quo before disposing of the application for condonation of delay in filing the stay application upon which such order of status quo was passed with further direction that both the applications. e. the application for condonation of delay and the main application should be disposed of by November 30, 2006 at the latest. His lordship was informed by the parties that the interim order was subsisting till November 2, 2006, the next date fixed in the Tribunal. Although prayer for mandamus directing the Tribunal to recall the order dated May 29, 2006 and at the same time, a writ in the nature of prohibition asking the Tribunal not to give effect to the said order dated May 29, 2006 were prayed for, His lordship did not issue those writs. A further prayer for writ in nature of certiorari was also made for transmitting the records of the Tribunal to this court, but such prayer was not granted.
( 4 ) THE second writ application was moved on October 13, 2006, thereby praying for a direction for taking effective step for completion of the sale of the property which was stayed by virtue of the existing order of status quo granted by the Tribunal.
( 5 ) THE same learned Judge, sitting in the vacation, passed an interim order by directing the Receiver-cum-Chairman of the Asset Sale Committee, constituted by the Tribunal by order dated February 11, 2004, which had been stayed by the subsequent order of status quo, to take step to expeditiously complete the sale of the disputed property, and at any rate, within eight weeks from the date of that interim order. Such interim order was passed by the learned Single Judge knowing fully well that the order of status quo was subsisting at least till November 2, 2006 and that the Tribunal was required to decide whether the said order of status quo should be extended in the event the delay in filing the application was condoned. Moreover, by the said interim order, the learned Single Judge virtually granted the entire relief claimed in the second writ application before decision on merit.
( 6 ) BEING dissatisfied with the aforesaid interim order passed in the second writ application, the other mandamus appeal being A. P. O. No. 396 of 2006 was filed during the vacation before the Division Bench and the Division bench consisting of Indira Banerjee and Biswanath Somadder, JJ. after entertaining the said appeal, on the application of the appellant, stayed the operation of the order impugned therein for a limited period till the opening of this Court after vacation.
( 7 ) THE interim order, so granted by the Division Bench during the vacation, was extended by us after the reopening and we decided to hear out both the mandamus
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