Dipankar Datta, J.
1. The petitioners initiated proceedings under Section 6 of the West Bengal Premises Tenancy Act, 1997 (hereafter the WBPT Act) before the learned Judge, 5th Bench, Court of Small Causes at Calcutta on December 8, 2004 for recovery of possession of the premises in question from the respondent No. 1, being the defendant therein. The petitioners' claim was allowed and order for recovery of possession was passed on May 15, 2006. Proceedings travelled upto the Supreme Court. The order for recovery of possession survived with certain modifications whereafter it was put into execution. By order dated March 17, 2009, the learned Judge dismissed the execution case relying on the decision of a learned Single Judge of this Court in Tapas Biswas v. Shyama Prosad Ghoshal 2009 (1) CHN 183. The learned Judge held as follows:
Since the Hon'ble High Court held that Presidency Small Causes Court has no jurisdiction and the decree passed by the Presidency Small Causes Court, Calcutta after the amendment of 2005 is nullity, this Court has no jurisdiction to proceed with the instant execution case any further because the court cannot execute a decree which is a nullity.
As this Court has no jurisdiction to try the eviction suit under West Bengal Premises Tenancy Act, 1997, this Court has also no jurisdiction to execute the decree passed under the said Act due to inherent lack of jurisdiction.
Hence, it is Ordered
That the instant petition filed by the Jdr is hereby allowed on contest but without cost.
The instant execution case shall not proceed any further.
The decree holder/plaintiff is at liberty to make proper application in the original suit for return of the plaint.
Judge 5th Bench
2. This order is the subject matter of challenge in this writ petition dated April 1, 2009 wherein the petitioners have prayed for the following relief:
a) A declaration that Presidency Small Causes Court at Calcutta has and had, a jurisdiction to hear the Ejectment Suit No. 28 1 of 2004(E) and all proceeding arising there from;
b) A declaration be given for hearing of Ejectment Execution Case No. 193 of 2006 arising out of Ejectment Suit No. 28 1 of 2004 (E) on merit;
c) A writ of and/or in the nature of certiorari, do issue calling upon the Respondent No. 5 to forthwith transmit to this Hon'ble Court all records relating to Ejectment Suit No. 281 of 2004 (E) and Ejectment Execution Case No. 193 of 2006 so that conscionable justice may be dune by quashing and/or set aside the order No. 48 dated 17.3.2009, passed by the Learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Execution Case No. 1 93 of 2006, arising out of Ejectment Suit No. 281 of 2004 (E).
3. It appears that the writ petition was considered on a number of days between May 4, 2009 and October 23, 2009 by a learned Judge of this Court. In view of the importance of the issue involved herein, Mr. Balai Chandra Ray, the learned Advocate General for the State was requested to assist the Court.
4. The writ petition has since been listed before me for final hearing. The rival parties and Mr. Ray have been heard.
5. Mr. Bagchi, learned Advocate for the respondent No. 1/judgment debtor contended that this Court ought not to pass any orders on the writ petition, as prayed for, since the jurisdiction of the Court of Writ (Single Bench) is excluded by the provisions contained in the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereafter the LRTT Act). He referred to the provisions contained in Sections 2(r)(vi), 6, 7, 8 and 11 of the LRTT Act in support of his submission.
6. On merits, he contended that the learned Judge who allowed the application of the petitioners not having been appointed as Controller in terms of Section 38 of the WBPT Act, he had usurped jurisdiction to decide the lis and the order passed by him is a nullity.
7. Mr. Ray supported the argument of Mr. Bagchi.
8. Countering the objection, Mr. Chatterjee, learned Senior Advocate representing the petitioners contended that the objection raised by his adversary is not well-founded. He referred to the Division Bench decision of this Court in Pashupati Adhikary v. Pradyut Kumar @ Tarapada Adhikary 2003 (4) CHN 347 as well as the provisions of the WBPT Act, as it originally stood and as it stands now after various amendments including the latest amendment thereof brought about by the West Bengal Premises Tenancy (Amendment) Act, 2009 (hereafter the Amendment Act) with effect from June 9, 2009 in support of his submission that the order passed by the learned Judge allowing the application of the petitioners praying for eviction of the respondent No. 1 and for recovery of possession ought not to be considered a nullity.
9. In his usual fairness, he invited my attention to two Division Bench decisions of this Court [Dipak Kumar Singh v. State of West Bengal : 2008(2) CHN 943, and Gopika Projects Private Limited v. State of West Bengal and Ors. 2009 (4) CHN 652] wherein, however, the views taken are contrary to the contentions urged by him. Relying upon the decision of the Supreme Court in State of West Bengal v. Ashis Kumar Roy : (2005) 10 SCC 110, the Division Bench in Dipak Singh (supra), it was submitted, held that the law laid down in Pashupati Adhikary (supra) is no longer good law. The view taken in Dipak Singh (supra), he further submitted, has been followed in Gopika Projects (supra) whereby the decision in Tapas Biswas (supra) has been overruled.
10. According to him, however, none of these two decisions stand in the way of granting relief to the petitioners on the basis of the Amendment Act which, though had come into effect from June 9, 2009, was not brought to the notice of the Division Bench while it decided Gopika Projects (supra).
11. The contentions raised on behalf of the parties have duly exercised my consideration.
12. It is noticed that in terms of Section 6 of the WBPT Act, as originally enacted, proceedings for an order for recovery of possession of any premises was required to be initiated by the landlord by an application in the prescribed manner and considered by the Controller, as defined in Section 2(a) and appointed in the manner prescribed by Section 38 thereof. By Section 2(i) of the West Bengal Premises Tenancy (Amendment) Act, 2005, the words 'by the Controller' in Section 6(1) have been replaced with the words 'by the Civil Judge having jurisdiction' with retrospective effect from March 19, 2005. Also, by Section 3(1) of the West Bengal Premises Tenancy (Amendment) Act, 2006, the words 'except on a suit being instituted by such landlord' have replaced the words 'except on an application made to him by the landlord in the prescribed manner' with effect from June 1, 2006.
13. In my reading of the Division Bench decision dated November 19, 2009 of this Court in Gopika Projects (supra), an order or decree passed by a Civil Court in connection with and/or on proceedings initiated by a landlord under the WBPT Act for recovery of possession of premises in occupation of his tenant would be open to challenge before the Tribunal constituted under the LRTT Act and that the revisional/appellate jurisdiction of the Civil Courts superior to the Court that passed the order/decree would stand excluded.
14. Relevant paragraphs from the decision in Gopika Projects (supra), to this effect, read as follows:
87. Similarly, the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 as we have found from its Preamble, was brought in the statute book by the Legislature in its wisdom, for the purpose of adjudication and trial regarding disputes, claims, objections and applications relating to or arising out of land reforms or tenancy in land etc. etc. and for the exclusion of the jurisdiction of all Courts. We would be of the view that no more would the Civil Court be treated as a sanctum sanctorum in this respect and the jurisdiction of the Tribunal can be spurned.
***
90. One has to proceed a little further to the salutary provisions of Section 7, 8 and 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 which speak of the powers and exclusion of jurisdiction of other Courts.
91. Immediately we will find that no other interpretation can be effected so as to exclude the jurisdiction of the Tribunal.
92. At once it will be clear that there has been exclusion of jurisdiction in respect of Orders passed by the Civil Court in such type of Matters and the only recourse would be before the Tribunal.
15. However, as correctly submitted by Mr. Chatterjee, it does not appear that the latest amendment introduced by the Amendment Act was brought to the notice of the Division Bench. I consider it appropriate to reproduce below the Amendment Act in its entirety. It reads:
Short title and commencement.- (1) This Act may be called the West Bengal Premises Tenancy (Amendment) Act, 2009.
(1) It shall come into force on such date as the State Government may, by notification, appoint.
(2) Insertion of new section after Section 12 of West Ben. Act XXXVII of 1997. - After Section 12 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the principal Act), the following section shall be inserted:
1 2A. Special provisions regarding jurisdiction of Court for trial of suits for possession.- (1) Notwithstanding anything contained in any other law, a suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts, as set out in Schedule IV and no other Court shall be competent to entertain or try such suit or proceeding.
(2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall, mutatis mutandis, apply to all suits and proceedings referred to in Sub-section (1) except suits or proceedings which lie to the High Court at Calcutta.
3. Addition of new Schedule after Schedule III.- After Schedule III of the principal Act, the following Schedule shall be added:
'SCHEDULE IV
[See Section 12A(1)]
Where the premises are situated on land wholly within the ordinary original civil jurisdiction of the High Court at Calcutta,-
(a) In case the value of the suit exceeds ten lakh rupees, to the High Court at Calcutta;
(b) In case the value of the suit does not exceed ten lakh rupees but exceeds sixty thousand rupees, the City Civil Court established under Section 3 of the City Civil Courts Act, 1953 (West Bengal Act XXI of 1953);
(c) In any other suit, to the Chief Judge of the Court of Small Causes constituted under the Presidency Small Causes Courts Act, 1882 (15 of 1882), in the town of Kolkata, who may try the suit himself or may transfer the suit for trial to any other Judge of the said Court who shall try the suit as a court of first instance'.
4. Validation.- The amendments made in the principal Act by Section 2 and Section 3 shall be deemed to have been made with effect from the 10th day of July, 2001 and accordingly anything done or any action taken or purported to have been taken or done under the principal Act on or after the said date and before the commencement of this Act, shall, notwithstanding anything contrary contained in any judgment, decree or order of any court, tribunal or other authority, be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the said amendments had been in force at all material time.
By order of the Governor,
Anindya Bhattacharyya,
Secy.-in-charge to the
Govt. of West Bengal,
Law Department.
16. The statement of objects and reasons for introducing the amendments as above is to the following effect:
STATEMENT OF OBJECTS AND REASONS
The Bill seeks to amend the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997), with a view to empowering the Court of Small Causes constituted under the Presidency Small Causes Courts Act, 1882 and the City Civil Court established under the City Civil Courts Act, 1953, to have jurisdiction to try and dispose of the eviction cases since the said Act has not empowered the said Courts to have jurisdiction to try and dispose of the eviction cases, although many such cases have already been filed and disposed of by the said Courts.
2. The Bills has been framed with the above object in view.
Kolkata
The 27th February, 2009
Sd/ ABDUR RAZZAK MOLLAH
Member-in-Charge
17. In view of Sections 2, 3 and 4 of the Amendment Act, the deficiencies in the WBPT Act have been sought to be cured. I have little doubt in my mind that the Amendment Act was introduced to overcome the consequences that would ensue consequent upon the decision of this Court in Tapas Biswas (supra) which, however, stands overruled by the decision in Gopika Projects (supra).
18. It is worthy of being noted that while the WBPT Act obtained the assent of the President of India, the Governor of the State of West Bengal assented to introduction of the Amendment Act. In Mohammed Abdul Khader v. Govt. of Andhra Pradesh : AIR 1985 Andhra Pradesh 217, a Division Bench of the Andhra Pradesh High Court held that although the parent Act may have received the assent of the President but it does not mean that every Bill seeking amendment of the parent Act should be reserved by the Governor for consideration and assent of the President. The learned Judges distinguished the Special Bench decision of this Court (cor. Hon'ble S.P. Mitra, C.J., Hon'ble Sabyasachi Mukharji and Hon'ble Salil Kumar Datta, JJ.) in Ananda Kumar Chakraborty v. State of West Bengal : AIR 1977 Calcutta 73. Hon'ble Sabyasachi Mukharji, J. (as His Lordship then was) speaking for the Bench, having regard to the fact that the amending Act sought to enlarge the period of time within which the empowered officer can suo motu take steps for revision of the record of rights, thereby fundamentally affecting the procedure for rectification of record of rights which is inextricably connected with the scheme of acquisition, and the provisions contained in Article 31A of the Constitution, ruled that without the assent of the President the same is unenforceable in law. In the process, Their Lordships of the Special Bench distinguished the decision of the Supreme Court in S. Ahmed v. State of Mysore : AIR 1975 SC 1443. There, the writ petitions filed under Article 32 of the Constitution were dismissed holding that the Amending Act, though did not receive Presidential sanction as required under Article 304(b) thereof, only varied the form of restrictiveness without appreciably adding to the content of the parent Act and that if the substance of statutory rules is converted into statutory provisions, that did not really amplify or increase the restrictions already there.
19. I had not called upon the parties to address me on the question as to whether the Amendment Act is constitutionally valid or not and hence no argument was advanced in this behalf. Nonetheless, having regard to one of the tests applied by the Special Bench in Ananda Kumar Chakraborty (supra) in holding the amending Act unenforceable, I am prima facie of the view that validity of the Amendment Act is not free from doubt since it seeks to expand the ambit of the WBPT Act and validates certain acts without receiving Presidential assent.
20. The people of our country are governed by the rule of law. The Preamble of the Constitution epitomises the promise of the people of the country that they shall strive to secure justice, - social, economic and political and equality of status and of opportunity. Law, therefore, should not be uncertain, be it enacted by the legislature or declared by the judiciary, so as to result in chaos or confusion. As in the present case, the landlord/decree-holder having succeeded till the final tier is faced with a situation where non-interference with the order impugned would compel him to start proceedings for eviction afresh and the tenant despite having suffered a decree would stand to reap the benefit of such anomalous legal position. I am sure, that would not at all be just and make a mockery of the Preambular promise of securing justice and equality to the people of the country.
21. I am conscious of the issues that have arisen for determination by me on this petition. At the same time, I am of the firm view that more serious questions in the field of landlord-tenant dispute for recovery of possession under the WBPT Act have arisen in view of the amendments to such Act made from time to time and the decision in Gopika Projects (supra). These issues, which are of substantial importance, require to be addressed first.
22. Justification for the course of action I intend to adopt, despite constitutional validity of the Amendment Act not being under challenge, is that being a Court empowered to exercise Constitutional Writ Jurisdiction I ought not to shut my eyes to the myriad problems likely to surface as a consequence of the law being uncertain. I would fail the oath taken by me while assuming office as a Judge of this Court to uphold the Constitution if I proceed to tread on the safe path of deciding the lis before me without expressing concern for the uncertain laws.
23. The law declared by this Court in Gopika Projects (supra) and the statutory law, post amendment, if valid, in my opinion, cannot be reconciled and, if I may say so, is in apparent conflict. Having regard thereto, it would not be prudent on my part to consider the controversy raised in this writ petition on merits unless the conflict is resolved.
24. In view of possible stalemate situation that might follow in respect of proceedings before Civil Courts, either pending or terminated, as on date, arising out of landlord-tenant disputes for recovery of possession under the WBPT Act, the primary issue that is required to be addressed is:
1. The West Bengal Premises Tenancy Act, 1997 having received the assent of the President of India, whether the West Bengal Premises Tenancy (Amendment) Act, 2009 assented to by the Governor of West Bengal is constitutionally valid and enforceable as law ?
24. Depending on and/or irrespective of the answer to the preceding issue, to my mind, the following further questions may be addressed:
a). Whether on the face of the West Bengal Premises Tenancy (Amendment) Act, 2009 which went unnoticed in Gopika Projects (supra), the decision therein ought to be considered good law ?
b). Since Section 6(1) of the West Bengal Premises Tenancy Act, 1997 refers to 'order or decree', whether 'order' mentioned in Section 6(a) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 would include a 'decree'? If not, which forum would be competent to entertain a challenge to such decree?
c). Having regard to settled law that right of appeal must be conferred by statute, whether an order or decree passed by a learned Judge of a Civil Court in connection with a suit instituted under the West Bengal Premises Tenancy Act, 1997 is appealable before the Tribunal constituted in terms of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 despite no right for preferring appeal thereagainst having been conferred by Section 43 of the West Bengal Premises Tenancy Act, 1997 or by any other provision thereof?
d). Whether the expression 'decree' in Section 6(1) of the West Bengal Premises Tenancy Act, 1997 would have the same meaning as defined in Section 2(2) of the Civil Procedure Code and further as to whether the provisions of such Code would regulate a suit for eviction to be tried by a Civil Judge having jurisdiction right from commencement till termination thereof in the absence of any such provision in this behalf in the aforesaid Act ?
e). What would be the effect of a decree for recovery of possession passed by a learned Civil Judge who was never appointed as Controller in terms of Section 38 of the West Bengal Premises Tenancy Act for the purpose of Chapter III thereof ?
f). Whether any final or interlocutory order passed in a suit for eviction by a Civil Judge having jurisdiction exercising power in terms of the West Bengal Premises Tenancy Act, 1997 can be challenged before this Court (Single Bench) either under Article 226 or Article 227 of the Constitution having regard to the provisions in Sections 7 and 8 of the West Bengal Land Reforms and Tenancy Tribunal Act ?
25. The questions/issues formulated above are a few out of many and necessarily may not cover the whole ground of controversy. However, in my humble view, these are some questions of law of substantial importance and, accordingly, I do hereby, in the interest of justice and keeping in mind the provisions contained in Rule 53 of the Writ Rules, direct that the cause papers be placed before the Hon'ble the Chief Justice at once for considering the desirability of constituting an appropriate Bench to address the same.
26. Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties as early as possible after compliance with all formalities.