K.J Sengupta, J.:— The applicant before us having lost in eviction suit (Ejectment Suit No. 369 of 2004) before the learned 6th Court of Civil Judge (Junior Division) at Alipore had preferred appeal before the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as the said Tribunal) challenging the said decree of dismissal. The learned Tribunal by brief judgement and order dated 12th March, 2007 rejected such challenge. The applicant before us has impugned both the judgement and order. The applicant filed the suit for eviction against the respondent on the ground of default, reasonable requirement, building and re-building. At the time of hearing of the suit before the learned Civil Judge the ground for reasonable requirement was not pressed. The other grounds were examined by the learned Civil Judge and found the plaintiff viz. the applicant had failed to prove the case of default and also building and re-building.
2. Mr. Tapan Kumar Mukherjee, learned Advocate, appearing in support of this application, contends that under mistaken advice of law his client filed an application before the learned Tribunal to challenge the decree of dismissal of the learned Civil Judge. He submits that this order of learned Tribunal should be set aside and liberty be given to him to file appeal before the appropriate Civil Appellate Court as by virtue of amended West Bengal Premises Tenancy (Amendment) Act, 2002 which has been given effect from 10th July, 2001, the Controller is no longer competent to entertain the ejectment suit, the learned Civil Judge having jurisdiction over the matter has now been conferred with this power. He says, drawing our attention to section 43 of the West Bengal Premises Tenancy Act, 1997, that the Tribunal is a competent forum in entertaining appeal against the order of the Controller not against the order of the Civil Judge. As such, the learned Tribunal is incompetent to entertain any challenge against order of the learned Civil Judge in view of lack of inherent jurisdiction. According to him the provision of Civil Procedure Code read with Bengal, Agra, Assam Civil Courts Act will be applicable in this matter. His further contention is that a Division Bench of this Court in case of Pashupati Adhikary v. Pradyut Kumar @ Tarapada Adhikary reported in 2003 (4) CHN 347 has held that the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 cannot take away the power and authority of the Civil Judge under Bengal, Agra and Assam Civil Courts Act, 1887.
3. On merit he contends that both the learned Tribunal and Civil Judge have not correctly appreciated the evidence and wrongly dismissed the suit.
4. Mr. A.N Banerjee, learned Counsel for the State and Mr. Upendra Roy, learned Counsel for the respondent No. 2, who is the tenant, submit that by virtue of sections 6, 7 and 8 of the Tribunal Act the Tribunal is the only forum to entertain challenge against the eviction decree passed under the Tenancy Act (as amended). According to them, section 43 of the Tenancy Act should not be read in conflict with and in contra to the provision of the said Tribunal Act. On merit their contention is that both the for a have examined that the plaintiff/applicant has failed to prove the case of default, building and re-building.
5. Besides, they say that the applicant after having filed application before the Tribunal is estopped from questioning the jurisdiction of the learned Tribunal and this point could have been raised before the learned Tribunal at the first instance. Actually, the applicant/appellant had taken a chance and having found themselves unsuccessful this frivolous contention has been raised before this Court for the first time.
6. We have examined the contentions of the learned Counsels both on law and fact and we have also read the respective pleadings and the impugned two judgement and order of both the fora. Before we decide the factual issue we have to examine the legal issue raised by Mr. Mukherjee. The learned Counsel for the respondents has taken a plea of estoppel. We are of the view that it is a settled position of law that principle of estoppel does not apply as against the statutory provision. The litigant cannot confer jurisdiction of any authority if the statute has not done so. Just because the applicant approached with the application whether successful or not before a particular forum he cannot be prevented from questioning the jurisdiction at later stage before competent forum. This is a point which goes to the very root of the matter. If any person having no authority under mistaken concept of law or advice takes any action, such an action is always termed to be non est and should be ignored. Thus, we reject the contention of the learned Counsel for the respondents on the question of estoppel.
7. The legal issue raised by Mr. Tapan Mukherjee in our view is not tenable at all for the reasons stated hereunder:
The contention raised by the learned Counsel for the respondent is that in view of sections 6, 7 and 8 of the Tribunal Act, 1997 the jurisdiction of the Civil Court in any manner whatsoever in connection with any proceedings initiated under the specified Acts has been ousted. We, therefore, set out the aforesaid three sections:
“6. Jurisdiction, power and authority of Tribunal.— Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to—
(a) any order made by an authority under a specified Act;
(b) an application complaining inaction or culpable negligence of an Authority under a specified Act;
(c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953 (W.B Act 1 of 1954);
(d) applications relating to matters under any provision of a specified Act or matters relating to any Constitutional validity of any Act under the provisions of a specified Act;
(e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.
7. Exercise by Tribunal of jurisdiction, power and authority exercisable by Court.—Save as otherwise expressly provided in this Act, the Tribunal shall, with effect from the date appointed by the State Government under section 6, exercise all the jurisdiction power and authority exercisable immediately before that day by any Court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provisions of a specified Act.
8. Exclusion of jurisdiction of Courts.—On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or any Civil Court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act.”
8. It is contended that the word ‘authority’ mentioned in section 6 of the Tribunal Act does not include the Civil Judge as mentioned in the Tenancy Act. We think that such contention is not correct position of law. In our opinion the term ‘authority’ mentioned in the section 6 clause (a) includes not only judicial authority but also the quasi-judicial one including Controller. We have examined the amended Tenancy Act and it appears to us that the jurisdiction and power on different and distinct subjects have been given to two authorities. The power and jurisdiction to pass ejectment decree has been given to the Civil Judge by recent amendment. Originally such power was exercisable and/or enjoyed by the Controller. Now the power of the Controller has been truncated allowing him to entertain the dispute in relation to fixation of fair rent etc. and this will appear from the various sections of the said Act.
9. Section 17 of Chapter VI of the Tenancy Act, 1997 gives power to the Controller to fix fair rent in respect of any premises in accordance with the provisions of this Act. Section 21 enables the tenant to deposit the rent with the Controller and the Controller in his turn is obliged to receive such an application for deposit of such rent. In section 26 under Chapter VII of the said Act the Controller has been given power to decide the question of creation of subtenancy. In section 27 of Chapter VIII of the said Act there is power of Controller for imposing penalty in case of suspension of supply of essential services by the landlord to tenant. In sections 28, 29, 30, 31, 32, 34 and 35 of Chapter VIII Controller has been given quasi-criminal power in case of breach and contravention of the provisions of the said Act. Section 35 of Chapter DC empowers the Controller to pass necessary order for repair and taking measurement for maintaining the essential services. Chapter X of the said Act provides for procedure under which the Controller will proceed under the said Act. It is not in dispute that the Tenancy Act, 1997 has become one of the specified Acts as mentioned in section 2(r) of the Tribunal Act, 1997 and this has been incorporated by way of amendment with effect from 10th July, 2001. One of these Acts has been made part of the Tribunal by way of incorporation. The provisions of the Tribunal Act are applicable in relation to any act or action having taken by the authorities and this has been made clear in section 6 clause (a) of this Act. Under such circumstances, the power of the Civil Court either by way of revision or appeal has been expressly taken away and the Tribunal is the only forum to be approached immediate after any order has been passed under the aforesaid Act by any authority whether a Civil Judge or Controller. One has to has approach the Tribunal first, then one can approach this Court under Articles 226 and 227 and this has been made clear in the judgement rendered in case of State of West Bengal v. Ashish Kumar Roy reported in 2005 (10) SCC 110. The judgement rendered in case of Pashupati Adhikary v. Pradyut Kumar @ Tarapada Adhikary reported in 2003 (4) CHN 347 is no longer a good law in view of the subsequent pronouncement of the Supreme Court to apply in this case. In paragraph 27 of the Ashish Kumar Roy's Case the Supreme Court expressly dealt with this subject which is set out hereunder:
“In the instant case, the Tribunal has been constituted under the West Bengal Tenancy Tribunal Act and it has been given the jurisdiction to entertain disputes with regard to the five specified Acts.”
10. Hence, the contention of Mr. Mukherjee is that the Tribunal has no jurisdiction to entertain any appeal and only the appropriate Civil Court viz. District Judge has jurisdiction to entertain the same is not acceptable to this Court. It is well-settled that right of appeal must be expressed in the statute itself. In the statute viz. the said Tenancy Act the right of appeal has been provided but that right as it appears from the plain reading of the section 43 against the final order of the Controller. We are not making any comment whether eviction decree passed by the Civil Judge is appellable or not. In spite of the amendment the appellate power has not been given to any forum against eviction decree. Since this issue whether the appeal lies against the eviction decree or refusal to pass eviction decree is not involved we are not making any comment and this observation will not be binding. Even if appeal does not lie then remedy of the litigants against the decision of Civil Judge in this Act obviously lies under the Constitutional provision viz. 226 and 227 which is an inviolable provision of the Constitution as the same is basic structure thereof. The Tribunal is conferred with the jurisdiction to decide the Constitutional rights and remedies as a forum supplementary to the High Court as observed in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. Hence we hold that the Tribunal is competent to entertain the challenge against the order passed by the Civil Judge under the said Act.
11. Now coming to the merit of the matter we find that the learned Trial Judge viz. the learned Civil Judge has found upon appreciation of evidence that there is no need to rebuild the building as the premises in question has already been rebuilt. Case of default in paying rent has not been pressed. Case of reasonable requirement was not pressed. The learned Tribunal has also examined the case and found that findings of the Civil Judge is based on well worded findings and it was properly appreciated and analyzed by the learned Civil Judge. Under such circumstances, on this application while exercising our jurisdiction we cannot substitute our own decision re-appreciating the evidence. Hence, on merit this application must fail. Accordingly, this application is dismissed, however without any order as to costs.
Prasenjit Mandal, J.: I agree.
Appeal dismissed.
S.K.P