Judgment:
G.A.1455 of 2013 APO62of 2014 W.P.98 of 2013 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side MAHENDRA KUMAR JALAN Versus ANIL KUMAR J.
BAVISHI & ORS.BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR The Hon'ble JUSTICE JOYMALYA BAGCHI Date : 13th July, 2015.
For the Appellant : Mr.Mr.Mr.Mr.For the Respondents : Mr.Arindam Banerjee with Mr.Kaushik Bhatta, Advocates.
THE COURT second round of Shaktinath Mukherjee, Sr.Advocate with Samit Talukdar, Sr.Advocate, Alok Kumar Ghosh and Amiya Narayan Mukherjee, Advocates : The present appeal pertains to litigation in the same controveRs.between the parties.
The enactment in which the parties are fighting the lis is the West Bengal Building (Regulation of Promotion of Construction and Transfer by PromoteRs.Act, 1993.
According to the appellant, he had to knock at the doors of this Court invoking powers under Article 226 of the serious penal consequences Constitution on account of which have to be faced by the appellant for want of registration of the person and also want of registration of the project of the promoter.
The order of the learned Single Judge dated 15-22012 has earlier given writ rise to petition the was present filed aggrieved by the reasoned order Officer on the complaint of Sections 5, 6 and 6A of the litigation.
by the of the complainant the writ The Authorized petitioner.
aforementioned Act are relevant for the purpose of deciding the controveRs.in the matter.
petition by The learned Order Judge dated disposed 15-2-2012 in of the the writ following manner :“The Court respondents : Mr.submits Ghosh that the appearing for petitioner the had a statutory remedy of revision under section 6A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by PromoteRs.Act, 1993.
The petitioner is aggrieved by an order of the Authorised Officer dated August 24, 2011 (at page
269) Mr.Banerjee appearing for the petitioner does not dispute that the petitioner could file an application for revision.
But he says that the remedy of revision cannot be considered an efficacious remedy, for it is the discretion of the State Government either to revise the order or not to revise.
I think the petitioner should be regulated to the remedy of revision under section 6A.
If the petitioner remains aggrieved by the decision of the State Government, he can always approach the Writ Court under art.226.
For these reasons, I dispose of the writ petition saying that the petitioner is at liberty to file revision under section 6A and hopeing that the revision application is submitted, then the State Government will deal with it without any delay.
No costs.
Certified xerox.” Subsequently, when the matter went before the statutory Revisional Authority, said authority dismissed the revision on the ground of limitation holding that the revision was preferred beyond the period of limitation contemplated under section 6A of the above Act.
Aggrieved by petitioner/complainant present writ petition the same, approached contending this that the writ Court in the there was no justification to dismiss the revision without going into the merits of the case since the order dated 15-2-2012 implies under that Section the 6A period of of Act the limitation was contemplated impliedly waived.
Ultimately, learned the matter Single Judge was by a heard at detailed length order and the passed the impugned Judgment.
Aggrieved by the same, the appeal is preferred by the promoter contending that there was no discussion with regard to the period of limitation except a direction that since statutory revision is maintainable against the impugned order of Authorized Officer, the matter has to be heard by the Authority under section 6A of the Act.
In other words, according to the learned Senior counsel, Mr.Shaktinath Mukherjee, in the light of special statutes with which we are concerned, Section 5 of the Limitation Act or any other provision of the Limitation Act are inapplicable and in the light of specific period of limitation within which revision could have been filed, question of waiving the period of limitation under Section 6A of the Act would not arise.
In support of his contention, he places reliance on series of Judgments which are as under : i) Fateh Singh & ORS.versus Jagannath Bakhsh Singh & Another, 1925, P.C.55, ii) Abdul Hamid Sardar versus Hon’ble Sir Bejoy Chand Mahatap & Ors., 36, CWN,238 ; iii) A.V.Venkateswaran Collector of Customs Bombay versus Ramchand Sobhraj Wadhwani & Anr.
AIR1961S.C.1506 ; iv) Smt.
Sushila Devi versus Ramanandan Prasad & Ors.,AIR1976S.C.177, v) M/S.Motilal Padampat Sugar Mills Co.LTD.versus The State of Uttar Pradesh & ORS.AIR1979S.C.621, vi) Sakura versus Tanaji, AIR1985S.C.1279 ; vii) West Bengal Headmasters’ Association & ORS.versus State of West Bengal & Ors., 1991(2) CLJ.188 ; viii)Union of India & Anr.
versus Kiriloskar Pneumatic Co.LTD.(1996) 4 SCC453 ix) P.K.Ramachandran versus State of Kerala & Anr.
AIR1998S.C.2276, x) Krishna Bahadur versus Purna Theatre & ORS.(2004) 8 SCC, 229, xi) Mackintosh Burn LTD.versus State of West Bengal & Ors.,2007(2) CHN, 115, xii) K.
Vilasini & ORS.versus Edwin Periera & ORS.(2008) 14 SCC349 xiii) Municipal Corporation of Delhi versus Laxmi Narayan Tandon etc.etc., AIR1076S.C.621.
As against this, Mr.Arindam Banerjee, learned counsel for the respondent No.1 relies on case of Subramanian Swamy reported in (2012) 3 SCC64 versus the Judgment in the Manmohan Singh & Anr.
The law written in the above decisions right from 1925 till 2008 relied upon by learned Senior Counsel clearly indicates how mere expression or passing remark or opinion opinion could be considered if there is no express positively controversy, deciding especially with the real regard question to issue of of limitation.
So far as the proposition laid down in the above decisions, learned counsel Mr.Banerjee fairly submits that he has no quarrel with the said proposition and, according to him, having regard to serious consequences involved in the matter which would not only affect the interest of the parties concerned but also several others placed in the same situation as that of the writ petitioner, from a different the matter needs to be looked at angle in the light of penal consequences enumerated in the enactment, viz.
Sections 13A and 13B of the Act which read as under : “13A, Offences – (1) Any offences committed by a promoter by violation of the provisions of sub- section (1) of section 3, section 7, sub-sections (1) and (2) of section 8,section 9 and section 11 of this Act shall be cognizable and non-bailable offence.
(2) Any offence committed by a promoter by violation of the provisions under section 10, and section 12, of the Act shall be non-cognizable and bailable offence.
13B.Penalties.-(1)Any promoter who fails to comply with the provisions under sub-section (1) of section 3 of this Act or the rules made thereunder, shall, on conviction, be punished with imprisonment of either description for a term not being less than six months which may extend to five years or with fine which may extend to fifty thousand rupees or with both: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding fifty thousand rupees.
(2) Any promoter who fails to comply with, or contravenes, the provisions of section 7, sub- sections (1) and (2) of section 8, section 9, or section 11, of this Act, or the rules made thereunder, shall on conviction, be punished with imprisonment of either description for a term, not being less than three months which may extend to four years or with fine which may extend to twentyfive thousand rupees or with both ; Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding twenty-five thousand rupees.
(3) Any promoter who fails to comply with, or contravenes, the provisions of section 10 or section 12 of this Act or the rules made thereunder, punished shall with on conviction, imprisonment of be either description for a term, not being less than three months, which may extend to three years or with fine which may extend to ten thousand rupees or with both.
(4) Any person who violates the provisions of any other section of this Act shall, on conviction, be punished with imprisonment of either description for a term, not being less than one month, which may extend to two yeaRs.or with fine which may extend to five thousand rupees or with both”.
Reading of lodging of offense could enactment a in the above complaint be made question.
two against out, as provisions the indicate promoter, contemplated Ultimately, it is if an in the for the Magistrate or the Authority who takes cognizance of the offence is to look into the matter and decide whether the cognizance of the offence can be taken or not.
This exercise has to be complaint untramelled based by on the averments of the any of the observations made earlier by the Authorized Officer or by this Court, even if it were to be passing remarks.
This independent right of the complainant has nothing to do with the civil consequences which were fought till now between the parties.
Therefore, the magistrate concerned has to take independent decision based on the contents complaint while taking cognizance of the offence.
of the With these observations, we allow both the appeal and the application and set aside the order of the learned Single Judge.
The appeal, application and also the writ petition are disposed of accordingly.
( MANJULA CHELLUR, C.J.) ( JOYMALYA BAGCHI, J.) Rs.AR(CR)