Calcutta High Court (Appellete Side)
State Of West Bengal And Ors vs Tozamul Haque And Ors on 14 November, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
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14.11.2019
KC(CL478-480)
W.P.L.R.T. 96 of 2019
State of West Bengal and Ors.
-versus-
Tozamul Haque and Ors.
With
W.P.L.R.T. 97 of 2019
State of West Bengal and Ors.
-versus-
Tozamul Haque and Ors.
With
W.P.L.R.T. 98 of 2019
State of West Bengal and Ors.
-versus-
Tozamul Haque and Ors.
Mr. Supratim Dhar.....................For the petitioners.
Mr. Animesh Mukherjee,
Mr. Abdul Alim..........................For the respondents.
These three writ petitions are at the instance of the State of West Bengal and four officers of its Land and Land Reforms Department.
W.P.L.R.T. 96 of 2019 is directed against an order dated 23rd August, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal (hereafter the tribunal) in M.A. 243 of 2012 arising out of O.A. 1938 of 2011 (LRTT).
W.P.L.R.T. 97 of 2019 is directed against the order dated 6th December, 2013 passed by the tribunal in M.A. 243 of 2012 arising out of O.A. 1938 of 2011 (LRTT).
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W.P.L.R.T. 98 of 2019 is directed against the order dated 15th September, 2015 passed by the tribunal in M.A. 282 of 2014 arising out of M.A. 243 of 2012, which in turn arose out of O.A. 1938 of 2011 (LRTT).
A preliminary objection to the maintainability of the writ petitions has been raised by Mr. Mukherjee, learned advocate for the respondents. Apart from raising the point that the writ petitions have been filed against certain dead persons, he has contended that the writ petitions are barred by res judicata or analogous principles as well as barred by delay and laches. Our attention has been drawn to an order dated 7th April, 2017 passed by a co-ordinate Bench in W.P.L.R.T. 33 of 2019 (State of West Bengal and Ors. -vs- Tozamul Haque and Ors.) as well as an order dated 24th January, 2018 passed by another co-ordinate Bench in W.P.L.R.T. 99 of 2017 (State of West Bengal and Ors. -vs- Tozamul Haque and Ors.). Relying on such orders, the contention that the writ petitions are barred by res judicata or analogous principles, has been raised.
Let us now examine how far the contention of Mr. Mukherjee is acceptable. In W.P.L.R.T. 33 of 2016, the present petitioners had challenged the judgment and order dated 14th November, 2011 passed by the tribunal in O.A.1938 of 2011 (LRTT), as well as orders dated 23rd August, 2013 and 6th December, 2013 passed in M.A. 243 of 2012 (LRTT). An order dated 7th April, 2017 records that on the prayer of the petitioners, W.P.L.R.T. 33 of 2016 was dismissed as not pressed; however, liberty was granted to the petitioners to take steps in 3 accordance with law on the self-same cause of action, if so advised. Availing the liberty granted by the order dated 7th April, 2017, the petitioners invoked the writ jurisdiction of this Court once again by filing W.P.L.R.T. 99 of 2017. In such writ petition, only the order dated 14th November, 2011 passed in O.A. 1938 of 2011 (LRTT) appears to us to be under challenge.
W.P.L.R.T. 99 of 2017 was heard on contest and dismissed by an order dated 24th January, 2018. The learned Judges comprising the co-ordinate Bench were of the view that it was open to the State authorities to approach the appropriate forum to have the judgment and decree passed in connection with a partition suit set aside and since recourse to have such judgment and decree set aside had not been taken, there was no error in the final order passed by the tribunal dated 14th November, 2011 directing the Block Land and Land Reforms Officer, Gazole to correct the record of rights of the lands in question of the respondents in the light of an order passed by the District Land and Land Reforms officer, Malda in Appeal No. 42 of 2008.
Despite the liberty granted by the co-ordinate Bench, no step was taken by the petitioners to have the judgment in the partition suit set aside; instead, the petitioners have applied for review (R.V.W. 191 of 2019) of the order dated 24th January, 2018. We are informed that the application for review is pending.
During the pendency of R.V.W. 191 of 2019, these three writ petitions were filed.
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It has not been explained to us why the petitioners did not or could not have challenged the orders dated 23rd August, 2013, 6th December, 2013 and 15th September, 2015 while invoking the writ jurisdiction of this Court a second time by presenting W.P.L.R.T. 99 of 2017. A point, which could have been raised in a previous proceeding but not raised, cannot be allowed to be raised by initiating separate proceedings after the earlier proceeding has failed. This is what flows from explanation (iv) to section 11 of the Code of Civil Procedure.
There is also no worthwhile explanation as to what prevented the petitioners to challenge the orders dated 23rd August, 2013, 6th December, 2013 and 15th September, 2015 earlier. These writ petitions have been filed in this Court as late as on 16th August 2019, without sufficient cause being shown for the belated approach.
We, therefore, find that the two fold objections raised by Mr. Mukherjee are well founded and, accordingly, we dismiss the writ petitions. There shall be no order for costs.
We, however, grant liberty to the advocate-on- record for the petitioners to effect correction in the cause title of the writ petitions by bringing the heirs and/or legal representatives of the deceased respondents, on record. This direction is given to keep the records straight.
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We also make it clear that dismissal of these writ petitions would not bar the petitioners to pursue R.V.W. 191 of 2019 before the appropriate forum in accordance with law.
Photostat copy of this order, duly countersigned by the Assistant Court Officer of this Court, shall be retained with the records of W.P.L.R.T. 97 of 2019 and W.P.L.R.T. 98 of 2019.
(DIPANKAR DATTA, J.) (PROTIK PRAKASH BANERJEE, J.)