2011 Supreme(Cal) 926

IN THE HIGH COURT OF CALCUTTA
Bhaskar Bhattacharya, Tapan Kumar Dutt And Prasenjit Mandal, JJ.
Popat & Kotecha Property & Anr.
Versus
The State of West Bengal & Ors.
WP No. 331 of 2009
Decided on : 14th July, 2011

Headnote:

WEST BENGAL LAND REFORMS & TENANCY TRIBUNAL ACT, 1997 - Section 2(r)(vi) - Inclusion of West Bengal Premises Tenancy Act, 1997 as a specified Act - Section 6(b) and (d) of the WBLRTT Act - Jurisdiction of the High Court curtailed - Petitioners left without a forum to challenge the vires and/or the constitutional validity of the WBPT Act 1997 - Section 10 of the WBLRTT Act - Conflicts with the provisions of Section 6 of the said Act - Section 10 is held to prevail over Section 6(b) and (d) thereof, then sub-section (b) and (d) of Section 6 are effectively nullified - Petitioners' rights under Article 14 of the Constitution of India violated - Rules framed under the WBLRTT Act - Do not provide for making of any such applications as provided for in Section 6(b) and (d) of the said Act - Rule 3 is vague, arbitrary, contrary to the parent Sections of the Act and are liable to be struck down as unworkable and ultra vires Article 14 of the Constitution of India - Amendment of WBPT Act in 2005 - Provisions of the said Act are now in conflict with the provisions of the WBLRTT Act - Civil Judges vested with powers under Sections 6, 7, 9 and 11 by way of amendment and the Controller's powers in those respects have been take away - Section 2(2) of the WBLRTT (Amendment) Act of 2002 by which Section 2(r) was amended ought to be struck down as ultra vires along with Section 2(r)(vi) of the WBLRTT Act, 1997 as being unworkable and arbitrary for the reasons aforesaid.

Fact of the Case:

Petitioner prayed for declaration that Section 2(r) (vi) of the West Bengal Land Reforms & Tenancy Tribunal (Amendment Act, 2002) is ultra vires the Constitution of India. Prior to the amendment of the WBPT Act in 2005, all matters relating to the provisions of the WBPT Act, including the eviction of tenants, used to be filed before the Controller or the Additional Controller or Deputy Controller who used to function under the direction of the Controller. The amendment in 2005 brought about a major change in the Act in that, inter alia, matters relating to eviction of tenants were taken out from the purview of the Controller and placed within the domain of a Civil Judge. Thus, instead of filing applications for eviction of tenants before the Controller, landlords were required to file suits before a Civil Judge praying for a Decree for eviction of tenants. The jurisdiction of Small Causes Courts was also taken away by such amendment.

Finding of the Court:

The provisions of Sections 7 and 8 of the WBLRTT Act are clearly contradictory to provisions of sections 6, 7, 9 and 11 in the WBPT Act which deal with the ambit of the Civil Judge. After the amendment of Sections 6, 7, 9 and 11 of WBPT Act, a further amendment ought to have been made in the WBLRTT Act, and WBPT Act ought to have been brought out of its ambit as a specified Act. It is to be noted that when WBPT Act was included in section 2(r) (vi) as a specified Act, all the powers and functions under the WBPT Act had been vested in and exercised by the Controller; it is only in 2005 that the Civil Judge has been vested with powers Sections 6, 7, 9 and 11 by way of amendment and the Controller’s powers in those respects have been take away. Till the coming into force of the WBPT Act 1997 on 10th July 2001 the old WBPT Act 1956 was kept out of the ambit of WBLRTT Act only because it had given powers to Civil Judges to decide eviction suits and the powers to Controllers were restricted to deposit of rent and fixation of fair rent. Thus after the amendment of 2005, WBPT Act 1997 ought to have been taken out of the purview of the WBLRTT Act.

Issues: Whether Section 2(r)(vi) of the West Bengal Land Reforms & Tenancy Tribunal (Amendment Act, 2002) is ultra vires the Constitution of India.

Ratio Decidendi: The inclusion of the WBPT Act as a specified Act under the WBLRTT Act, Section 6(b) and (d) of the WBLRTT Act gave the LRT Tribunal jurisdiction, inter alia, to hear and decide applications against any inaction or culpable negligence of an Authority under the WBPT Act as also any applications challenging the constitutional validity of the WBPT Act. However, Section 10 of the WBLRTT Act provided only applications by way of appeal from any order passed by an Authority or any action taken by an Authority, but does not cover applications “complaining inaction or culpable negligence of an Authority under a Specified Act” or applications “relating to constitutional validity of any Act under the provisions of a Specified Act” as referred to in Section 6 of the said Act. Thus, Section 10 of the said Act is clearly in conflict with the provisions of Section 6 of the said Act.

Final Decision: The writ-application is, thus, disposed of in terms of our present order. In the facts and circumstance, there will be, however, no order as to costs.