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Judgment
This writ petition is directed against order dated October 9, 2012, passed by the Secretary, Department of Housing, Government of West Bengal (respondent No. 7). The revision petition that the petitioner filed u/s 6A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 on March 9, 2012, questioning the order dated August 24, 2011, passed by the authorised officer in exercise of power conferred on him u/s 6 of the Act was rejected by the impugned order on the ground that the same had been presented beyond the statutory period of 60 (sixty) days from the date of the order dated August 24, 2011. Mr. Banerjee, learned Advocate appearing for the petitioner argued that the respondent No. 7 acted in excess of jurisdiction by rejecting the revision petition. According to him, the revision petition had been filed by the petitioner pursuant to an order dated February 15, 2012 passed by this Court in W.P. No. 94 of 2012 and having regard to its terms, the respondent No. 7 was required to deal with it on its merits. He, accordingly, prayed for setting aside of the order dated October 5, 2012 and for a direction on the respondent No. 7 to consider the revision petition on merits.
Mr. Basak, learned Advocate representing the respondent No. 7 supported the order impugned. It is his contention that the writ court by its order dated February 15, 2012 never directed the respondent No. 7 to decide the revision petition on merits. He had been directed to deal with it and having found that it was filed beyond the statutory period of 60 days, any order on the merits of the revision petition itself would have been in excess of jurisdiction. Dismissal of the writ petition has been prayed for by him.
Mr. Mukherjee, learned senior counsel representing the respondent No. 4, contended that the order passed by the respondent No. 7 does not suffer from any infirmity and, therefore, ought to be upheld. It is his argument that no Court has the power to give any direction overriding the provisions of law including that of limitation, and in the absence of a specific order on the respondent No. 7 to condone the delay in presentation of the revision petition and to deal with the same on merits, the order ought to be construed as one directing consideration of the revision petition in accordance with law. The respondent No. 7, according to him. had done exactly what the order required him to do and the petitioner, If he considered himself aggrieved by non entertainment of his writ petition ought to have preferred an appeal against the order dated February 15, 2012.
It has also been submitted that the order dated February 15, 2012 would not operate as res judicata for the respondent No. 4 to urge the Court to hold in its favour.
Various decisions were cited by Mr. Mukherjee in support of his contention that the impugned order does not deserve any interference, viz.
(i A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another,
(ii) 52 Indian Appeals 100: Fateh Singh v. Jagannath Bakhsh Singh;
(iii) Abdul Hamid Sardar Vs. Bijoy Chand Mahatap and Others,
(iv) Malaya Kumar Mazumdar Vs. Fakir Mohammad Sarkar and Others,
I have heard the learned counsel for the parties. For the purpose of deciding the point that has been raised by the petitioner, it would be necessary to consider in what circumstances the order dated February 15, 2012 was made by this Court.
PC Case No. 19 of 2009 was registered on a complaint dated October 9, 2009 filed by the petitioner. The petitioner had complained of unauthorized construction of a multi-storied building by the promoter without taking the requisite clearance and/or permission under the Act and the rules framed thereunder. Upon hearing the parties interested, the authorized officer under the Act of 1993 held that the petitioner is not entitled to any relief, as claimed and his complaint stood dismissed by the order dated August 24, 2011. The petitioner received the said order on August 30, 2011.
Section 6A of the Act reads as follows:
The State Government may, either suo motu or on an application by any party aggrieved by any order under this Act within sixty days from the date of such order, call for, and examine, the records of any proceedings disposed of by the authorised officer or by the authority referred to in sub-section (1) of section 5 or by the officer referred to in section 6, as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any such proceedings and of any order passed therein, and may pass such order in relation thereto as it may deem fit:
Provided that no order adverse to any person shall be passed without giving him an opportunity to show cause against the proposed order:
Provided further that no application for revision under this section shall be entertained where an appeal has been or could have been preferred u/s 5 or where an application for adjudication has been or could have been made u/s 6.
Despite section 6A of the Act providing a remedy of revision, the petitioner did not avail such remedy; instead, he filed a writ petition before this Court in 2012. The order dated February 15, 2012 passed on such writ petition, reads as follows:
The Court: Mr. Ghosh appearing for the respondents submits that the petitioner had a statutory remedy of revision u/s 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 relegated to the remedy of revision u/s 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, 1 dispose of the writ petition saying that the petitioner is at liberty to file revision u/s 6A and hoping that the revision application is submitted, then the State Government will deal with it without any delay.
No costs. Certified xerox.
Bare perusal of the aforesaid order would reveal that the Court was inclined not to entertain the writ petition and relegated the petitioner to the remedy of revision u/s 6A of the Act. It was further observed that the petitioner could always approach the writ court, if he felt aggrieved by the decision of the State Government. Liberty was accordingly granted to him to file revision petition u/s 6A of the Act and hope was expressed that the State Government would deal with it without any delay.
At the first blush, two views would seem reasonable on reading the order.
The first, as learned counsel for the respondents urge, is that the learned judge not having recorded any findings and merely directed the State Government to deal with the revision, the authority was required to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the Court. The respondent No. 7 duly applied his mind and having found the revision to be barred, rightly dismissed it.
The other view is that although the learned judge had not expressed any clear opinion or given a positive direction to consider the revision on merits, such result follows as a logical inference from the second sentence of the third paragraph of the order. The observation that the petitioner could invoke the writ jurisdiction if he felt aggrieved by the decision of the State Government on the revision petition is of immense significance. The Court while making the order dated February 15, 2012, must be presumed to have looked into the provisions of section 6A of the Act. The order impugned was passed on August 24, 2011, by the authorised officer. The time to file revision expired on October 30, 2011, i.e. 60 (sixty) days from date of receipt of the said order by the petitioner on August 30, 2011. The Act or the rules framed thereunder do not empower the State Government to entertain a revision petition beyond 60 (sixty) days of the impugned order by condoning the delay in its presentation. Even then, the Court desired that the petitioner must approach the State Government. It is true that the Court did not expressly require the revision petition, if filed, to be considered on merits notwithstanding limitation having set in but from the tenor of the order, an implied waiver of limitation is discernible. Had limitation not been waived, there is no reason as to why the Court would require the petitioner to complete a ritual of approaching the alternative forum provided by the Act to have an order of dismissal on the point of limitation and then to approach the Court once again. Whether or not limitation could be waived by the learned judge need not detain me for long, since the respondents did not carry the said order in appeal or apply for its review. In its decision reported in (2008) 4 CLT 221 (HC): Indu Busan Jana v. Union of India, an Hon''ble Division Bench of this Court has held that a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed adopting a procedure prescribed by law, and that it is in the interest of the public at large that finality should attach to the binding decisions pronounced by a Court of competent jurisdiction. It has also been held there that even in case of a judgment passed incurium which is unchallenged, the efficacy and binding nature of the operative order is conclusive inter partes and this principle applies both to an order from which an appeal lies but is not preferred and from which no appeal is provided. If indeed the State Government were free to decide the question of limitation and the revision petition dismissed on such ground (as is the case at hand), the decision on the question of limitation would be unexceptionable since admittedly the revision petition was time barred and the statute does not empower the State Government to entertain a time barred petition. The order, without anything more being demonstrated as to its impropriety or illegality, would obviously be upheld. It is, therefore, clear that the Court did not intend to exercise its power of judicial review of the order dated August 24, 2011 at the first instance without the State Government having considered the legality or propriety of the same in revision and that is precisely the reason why hope was expressed that the State Government would deal with the revision petition, if it were filed by the petitioner, and he could approach the Court once again should the decision operate adversely against him. To sum up, it could not have been and was never the intention of the learned judge to bring about any anomalous result by his order.
Upon due consideration of the order dated February 15, 2012, I am persuaded to hold the opinion that two views were not possible on a proper interpretation thereof and the view expressed above is the only reasonable view; consequently the respondent No. 7 was in error in dismissing the revision petition on the ground of limitation by proceeding on a mistaken view of the said order.
The decisions referred to by Mr. Mukherjee have been looked into. Apart from the decision in A.V. Venkateswaran (supra), the other decisions arose out of civil suits. The powers of the civil courts are circumscribed by the Code of Civil Procedure. It would, therefore, not be proper to apply the law laid down by the Courts while dealing with civil suit to a writ petition, which is an extraordinary remedy. The ratio in A.V. Venkateswaran (supra), on which reliance has been placed, is to the effect that "(I)f a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour." I am further inclined to take the view that this decision does not aid the respondent No. 4 at this stage and it ought to have been placed before the learned judge on February 15, 2012, when the earlier writ petition was being considered.
In the result, the order impugned dated October 9, 2012 stands set aside. The respondent No. 7 shall now proceed to decide the revision petition filed by the petitioner on merits as early as possible but positively within three months from date of receipt of an authenticated copy of this order. The writ petition is allowed, without order for costs.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.