Prasenjit Mandal - (1.) THIS application is at the instance of a tenant and is directed against the order dated March 17, 2010 passed by the Additional Rent Controller at Alipore in A.R.C. Case No.12/35 of 2009.
(2.) BY the impugned order, the Rent Controller has observed that the application under Section 35 of the West Bengal Premises Tenancy Act, 1997 filed by the tenant for water supply and repair may be agitated before the learned Civil Judge (Junior Division), 3rd Court, Alipore where a suit for recovery of possession is pending. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the concerned Rent Controller has passed the impugned order on an application under Section 35 of the 1997 Act. It is an independent proceeding and if any person has any grievance against the order thereon, the appropriate remedy is to approach the Tribunal and not the Civil Court. Mr. S.P. Roychowdhury, learned Senior Advocate, appearing on behalf of the petitioner has submitted that the Rent Controller is competent to dispose of the application under Section 35 of the said Act. He did not do so on the ground that a civil suit is pending. He also submits that a Larger Bench of this Hon?ble Court has decided the question of legality and validity of the Act of 1997 and it has been decided that certain provisions of the said Act are ultra vires and as such, an appeal preferred by the State against that order of the Larger Bench is now pending before the Apex Court. Under the circumstances, the petitioner cannot be treated as remediless. So, appropriate direction may be issued by this Court to take up the matter either by the Civil Court or by the Tribunal as this Court thinks fit. Mr. Roychowdhury has referred to the decision of the Larger Bench of Popat & Kotecha Property v. State of West Bengal reported in 2011(4) CHN 244 and thus, submits that since the Act of 1997 has been declared ultra vires and there is no information that stay is granted by the Hon?ble Apex Court, appropriate orders may be passed and the concerned authority may be directed to dispose of the matter at an early date.
(3.) ON the other hand, Mr. Probal Mukherjee, learned Advocate appearing on behalf of the opposite party submits that the Larger Bench decided certain provisions of the 1997 Act ultra vires and then the State Government preferred an appeal. That appeal has been admitted and stay of the judgment of the Larger Bench has been granted. So, the contention of the ultra vires at present should not be looked into. So, the application under Section 35 of the Act should be dealt with according to the provisions of the 1997 Act. Under the circumstances, Mr. Mukherjee contends that the Tribunal is the appropriate authority to deal with the matters over which the Rent Controller has passed order in exercising its jurisdiction. A civil suit is pending under Section 6(f) of the West Bengal Premises Tenancy Act, 1997 along with other grounds and that suit shall be decided in accordance with law. In that suit, the ground for ejectment was taken also for violation of the provisions of the (m), (o), (p) of Section 108 of the Transfer of Property Act and so, the question of repair should not be considered.;