- (1.) It appears in this matter the challenge has been thrown by the petitioner in respect of the appointment of the Rent Controller by a notification issued in the Calcutta Gazette on December 9, 2001. Such appointment of the Rent Controller, as it appears, is not in accordance with section 38 or section 45(2) of the West Bengal Premises Tenancy Act, 1997. It further appears that in an identical matter, namely in Tarun Kumar Mitra & Ors. vs. State of West Bengal & Ors., where an executive officer was appointed as the Rent Controller by the respondent authorities, a stay was granted by His Lordship Dipak Prakas Kundu on 20th August, 2003. It has to be noted that in that application the All India Tenants Welfare Federation was also a party. His Lordship held in the said matter that as has been laid down by the Legislators Controller, Additional Controller or a Deputy Controller appointed under section 38 of the West Bengal Premises Tenancy Act shall be a member of the judicial branch of the State. Unless he is a member of the judicial branch of the State service, no appointment can be made from the executive branch of State service.
(2.) It appears that the facts as has been stated in this application are identical to those of the abovementioned matter. It is needless to mention here that His Lordship Dipak Prakas Kundu passed the ad interim order in the said matter. The same view has to be expressed by me and I have to hold in this matter that the notification does not speak about section 38 of 1997 Act, though the said officer was appointed under section 38 of the said Act. If the appointment of a Rent Controller is called to be bad in law, in my opinion, he cannot function at all either in the administrative capacity or in the judicial capacity.
(3.) Hence, it would be proper at this stage to pass a stay on the said notification published on December 9,2001 in the Calcutta Gazette. This order is passed also in view of the fact the Mr. Kar Gupta has submitted that the State authorities are taking steps in that matter to remove all anomalies in respect of the said Act. The State authorities are also directed to appoint a Rent Controller who can also act to receive rent from the tenants in the administrative capacity.;