Calcutta High Court (Appellete Side)
Tarapada Mahato & Ors vs The State Of West Bengal & Ors on 18 July, 2022
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Harish Tandon.
&
The Hon'ble Justice Shampa Dutt (Paul)
COLRT 2 of 2022
TARAPADA MAHATO & ORS.
Vs.
THE STATE OF WEST BENGAL & ORS.
For the Petitioner : Mr. Bhaskar Ghose, Senior Advocate
Mr. Uttiya Roy, Advocate
Mr. Siddhartha Paul, Advocate
Mr. Arnab Mondal, Advocate
For the Private Respondents : Mr. Santimay Bhattacharya, Advocate
For the State : Mr. Anirban Roy, Learned G.P.
Mr. Md. T.M. Siddiqui, Advocate
Mr. Nilotpal Chatterjee, Advocate
Heard on : July 13, 2022
Judgment on : July 18, 2022
The Court: - A piquant situation has arisen in course of hearing when the order passed by the Additional District Judge in Estate Acquisition Appeal No. 27 of 1974 on July 23, 2012, is challenged before the West Bengal Land reforms and Tenancy Tribunal who assumed jurisdiction as an appellate authority and passed the impugned order. Before the aforesaid point is elaborated, the undisputed facts are required to be adumbrated.
The parties are litigating over their respective rights in respect of the land being the subject matter of dispute since 1973. Originally the subject 2 property belongs to one Ghosto Khatua and devolved upon his widow after his death as sole heir i.e. Smt. Monorama Khatua. Both the husband and wife were in actual physical possession of the property and the said widow subsequently transferred the subject land to one Kishori Mohan Bandyopadhyay by dint of four separate registered Kobalas on divergent dates in the year 1967-68. Subsequently the predecessor-in-interest of the present applicants purchased the subject property from the said Kishori Mohan Bandopadhyay by a registered sale deed executed on February 20, 1973 for valuable consideration and acquired the right, title and interest therein. Simultaneously with the execution and registration of the said sale deed the predecessor-in-interest of the present writ-petitioner no. 1 was put in possession by his vendor which he received from the said Manorama Khatua.
The dispute started when the predecessor-in-interest of the private respondents namely Shashank Shekhar Roy, Gunadhar Roy and Dibakar Roy made an application before the authority for recording their names as 'Bargadars' in respect of a subject land and on the basis thereof an Objection Case No. 7404 of 1973, was initiated under Section 44 (2a) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as 'the Act of 1953'). The parties are not ad idem on the issue whether the said Objection Case was initiated on the basis of an application filed by the aforesaid persons claiming as 'Bargadars' or a suo motu proceeding was initiated by Revenue Officer under the aforesaid provision of the Act of 1953.
Be that as it may, the said proceeding was disposed of on April 30, 1973 on the notice of the said Manorama Khatua who consented for revision in the record of rights and recording of the names of the aforesaid persons as 'Bargadars'. Since the said Monorama Khatua divested her right, title and interest in respect of the subject land prior to the initiation of the said Objection Case under section 44(2a) of the Act of 1953 and the moment it came to the notice, the predecessor of the present writ-petitioners made an 3 application for review of an order dated April 30, 1973 passed in the said Objection Case No. 7404 of 1973 upon recording such consent of the said Monorama Khatua. The Revenue Officer i.e. the Assistant Settlement Officer Camp 'B' at Anandabhaban, allowed the application for review and recalled the order passed in favour of the aforesaid persons being the predecessor-in- interest of the private respondents.
The order allowing an application for review was challenged by filing an Appeal being number 66 of 1973 under Section 44 (3) of the Act of 1953 before the District Judge, Medinipur which was eventually allowed by a judgment and order dated August 1, 1974 solely on the ground that the said authority did not have any power or jurisdiction to review its earlier order. The moment the predecessor-in-interest of the said petitioners realized that the power of review is not vested upon the said authority, the challenge was made to an original order by filing an Estate Acquisition Appeal No. 27 of 1974 before the learned District Judge, Medinipur accompanied by an application for condonation of delay. The learned District Judge, Medinipur dismissed the application for condonation of delay on August 20, 1974 and the same order was assailed before this Court in C.R. No. 5574 (W) of 1974. The learned single Judge dismissed the writ-petition upholding the order of the District Judge by which an application under Section 5 of the Limitation Act was rejected.
The order of the single Judge was carried to an Intra Court Appeal before the Division Bench in FMA 471 of 1978 (Appeal from original order). The Division Bench set aside the order of the Single Bench and also the District Judge and allowed the application for condonation of delay and directed the District Judge to hear out the said Estate Acquisition Appeal on merit within a timeframe. Pursuant to the said order, the said Estate Acquisition Appeal being 27 of 1974 was allowed on contest by and order dated July 23, 2012 upholding the contention of the writ-petitioners that the 4 Assistant Settlement Officer has wrongly converted the proceeding initiated on an application filed by the said alleged 'Bargadars' into a suo motu proceeding but remanded the matter to the Assistant Settlement Officer to decide the same afresh after affording an opportunity of hearing to the respective parties. The said order was challenged before the Tribunal in O.A. 2738 of 2012 and had been dismissed on contest with costs.
For clarity it is recorded that the order of the Additional District Judge passed in the Estate Acquisition Appeal was restricted to a portion of the impugned order by which the case was reminded to the Assistant Settlement Officer and not on the other findings made therein. The Tribunal proceeded to observe that the findings of the Additional District Judge in the said Estate Acquisition Appeal, so far as it relates to the nature of the proceeding, is bad. It is categorically observed that the said proceeding was initiated sou motu within the period of limitation and, therefore, there is no illegality and/or infirmity in the order of remand.
On the conspectus of the aforesaid facts emanate from the records, the first point which struck to us is whether the Additional District Judge was acting in a capacity of a Tribunal under Section 55 (2) of the Act of 1953 and if so, such order passed by the Tribunal is amenable to be challenged before the West Bengal Land Reforms and Tenancy Tribunal. The question which initially voiced out as to whether an order of Additional District Judge who has a trapping of the Tribunal under Section 55 (2) of the Act of 1953 can be challenged before another Tribunal i.e. the West Bengal Land Reforms and Tenancy Tribunal constituted under Article 323B of the Constitution of India.
On promulgation of the West Bengal Estate Acquisition Act, 1953 the record of rights is required to be prepared and revised under Section 44 of the Act of 1953. The provisions contained in section 44 of the said Act is reproduced as under: -
544. Draft and final publication of the record-of-rights. -- (1) When a record-of-rights has been prepared or revised [ xxx ], the Revenue Officer shall publish a draft of the record so prepared or revised in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or to any omission therefrom during the period of such publication :
[Provided that no order passed under section 5A shall be liable to be reopened in pursuance of an objection made under this sub-section.] (2) When all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally frame the record and cause such record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation:
[(2a1) Separate publication of different parts of draft or final records may be made under sub-section (1) or sub-section (2).] [(2a) An officer specially empowered by the State Government may, [on application within nine months, or of his own motion within [fifty years,]] from the date of final publication of the record-of-rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957 (West Bengal Ord. X of 1957), whichever is later, revise an entry in the record finally published in accordance with the provisions of sub-section (2) after giving the persons interested an opportunity of being heard and after recording reasons therefor :
Provided that nothing in the foregoing paragraph shall be deemed to empower such officer to modify or cancel any order passed under section 5A, while revising any entry: Provided further that no such officer shall entertain any application under this sub-section or shall of his own motion take steps to revise any entry, if an appeal against an order passed by a Revenue Officer on any objection made under sub-section (1), has been filed before the commencement of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, before a Tribunal appointed for the purpose of this section, and, notwithstanding anything in this section, any such appeal may continue and be heard and disposed of as if the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, had not been promulgated.] (3) Any person aggrieved by an order passed [in revision under sub-section (2a)] may appeal in the prescribed manner to a Tribunal appointed for the purpose of this section, and within such period [and on payment of such court-fees] as may be prescribed.
[(3a) The certificate of final publication referred to in sub-section (2), or in the absence of such certificate, a certificate signed by the Collector of any district in which the area to which the record-of-rights relates is wholly or partly situate, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the date thereof.
(3b) The State Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication. (3c) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied.] [(4) Every entry in the record-of-rights finally published under sub-section (2) including an entry revised under sub-section (2a) [, made under section 42A] or corrected under section 45 or section 45A shall, subject to any modification by an order on appeal under sub- section (3), be presumed to be correct 6 Sub-section (2a) of Section 44 of the Act of 1953 empowered the State Government to appoint any Officer bestowing the power upon him to revise the entry in the record finally published, in accordance with the provision contained under sub-section (2) thereof after giving an opportunity of hearing to the interested persons and upon recording the reasons therefor. The said sub-section has two different period of limitations - one in relation to any application having made in this regard and other for suo motu proceedings. It is manifest from the aforesaid provision that the moment the proceeding is initiated on the basis of an application filed by a person interested in the entry made in the finally published record of rights, the same has to be filed within nine months therefrom. The second situation is contemplated when the authority on its own may initiate the proceedings for which the larger period of limitation has been provided i.e. 60 years as amended as on date. Sub- section (3) of Section 44 of the Act of 1953 contains the provisions relating to an appeal in prescribed manner to a Tribunal appointed for the purpose of the said Section and within such period and on payment of such court-fees as may be prescribed. Section 55 of the said Act relates to a provision for appointment of a Special Judge and Tribunal in the following:-
55. Appointment of Special Judges and Tribunals. -- [(1) The State Government may [appoint] a person who is or has been a District Judge or an Additional District Judge to be a Special Judge for the purpose of section 11 or of section 20.] (2) The State Government may [appoint] one or more Tribunals for the purpose of section
44. Such Tribunal shall be composed of a single member who shall be [a person who is or has been] a District Judge [or an Additional District Judge] and shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act No. 5 of 1908).
[55A. Limitation. --The provisions of sections 5 and 12 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to any appeal or application under this Act.] So far as sub-section (1) of Section 55 is concerned, it is relatable to appointment of a person who is or has been a District Judge or an Additional District Judge to be a Special Judge for the purpose of Section 11 or of Section 20 which is not relevant in the present context. However, Sub-section (2) of Section 55 contemplates the appointment of a Tribunal for the purpose of Section 44 to consist of a single Member who shall be a person, who is or 7 has been a District Judge or Additional District Judge and shall have all the powers of the Civil Court under the Code of Civil Procedure, 1908. By invoking the provisions contained in sub-Section (2) of Section 55 of the Act of 1953, the Estate Acquisition Appeal was filed before the District Judge which was later transferred to the Additional District Judge and the order so passed was challenged before the West Bengal Land Reforms and Tenancy Tribunal constituted under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as 'the Act of 1997).
The first and foremost question which arose was that if the District Judge or the Additional District Judge has assumed jurisdiction and discharges the duties as Tribunal under Section 55 (2) of the Act of 1953, whether the order of the Tribunal can further be assailed before another Tribunal constituted under the provisions of the Act of 1997.
Mr. Bhaskar Ghose, learned senior Advocate, appearing for the writ- petitioners fervently submits that the District Judge or the Additional District Judge appointed under Section 55(2) of the Act of 1953 has no trapping of a Court exercising his normal jurisdiction of an ordinary Civil Court but dispose of the appeal as Tribunal appointed by the State Government. To buttress the aforesaid submission Mr. Ghose relies upon a Division Bench judgment of this Court in the case of Bishnu Pada Datta Vs. Joydeb Datta reported in 1974 CWN 682. Mr. Ghose further submits that there is no fetter on the part of the writ-petitioners to challenge the order passed by the Tribunal constituted under Section 55(2) of the Act of 1953 before the Tribunal constituted under the Act of 1997 by invoking the source of power emanating from Article 323B of the Constitution of India. Mr. Ghose further submits that Section 6 of the Act of 1997 confers jurisdiction upon the Tribunal constituted under the aforesaid Act in relation to any order made by an authority under the specified Act and, therefore, there is no impediment on the part of the writ-petitioners to 8 approach the said Tribunal challenging the order passed by the Tribunal constituted under the specified Act in an Estate Acquisition Appeal.
Mr. Ghose arduously submits that Section 12 of the Act of 1997 conferred power upon the Tribunal to deal with all matters whether appellate or otherwise conferred upon the High Court by the specific provision under the specified Act and, therefore, if further challenge can be made to the High Court against the order passed by the Additional District Judge under Section 55 (2) the Act of 1953 to the High Court, the same is amenable to the jurisdiction of the said Tribunal and placed reliance upon the judgement of the Single Bench rendered in case of Kashinath Mondal & Ors. Vs. Bani Ballav Biswas & Ors. reported in 2001 (1) CHN 319. Mr. Ghose further submits that the moment the learned Additional District Judge observed in his judgment that the said Assistant Settlement Officer has wrongly treated the proceeding as suo motu proceeding under Section 44(2) of the Act of 1953, there was no occasion on his part to remit the matter back to the authority for consideration afresh. He vociferously submits that the Tribunal should have decided the matter within the scope of the application which was restricted to the portion of the order by which the matter was remanded to the said authority and should not have proceeded to hold that the findings of the Additional District Judge in the Estate Acquisition Appeal that a suo motu proceeding initiated is infirm when the private respondents did not challenge the said finding by filing independent proceeding or otherwise. He thus submits that the impugned order is liable to be set aside and the Tribunal application should have been allowed.
Mr. Santimay Bhattacharya, learned Advocate, for the private respondents submits that the said Assistant Settlement Officer initiated the sou motu proceeding which would be evident from the first order recorded in the Objection Case and not on the basis of an application filed by the predecessor of the private respondents. He further submits that the suo motu 9 proceeding was initiated on an information given to the said authority/officer, which cannot be construed as an application. In support of the aforesaid submission, reliance is place upon a Single Bench decision of this Court delivered in case of Ajoy Kumar Sarkar Vs. The State of West Bengal & Ors. reported in 1989 (2) CLJ 426. He thus submits that there is no infirmity in remanding the matter to the said Assistant Settlement Officer for a decision afresh and, therefore, the instant writ-petition should be dismissed.
Though the State has appeared in the instant matter but did not advance any argument as according to them they have negligible role in relation to the disputes raised by the respective parties. However, it is submitted that the record would reveal that the proceeding was initiated sou motu by the said Officer/Authority for which the larger period of limitation is provided under Section 44(2a) of the Act of 1953.
Such being the stands taken by the respective Counsel before us, let us embark the journey by deciding the first point whether the West Bengal Land Reforms and Tenancy Tribunal is competent to deal with and decide a case challenging the order of the Additional District Judge in an Estate Acquisition Appeal filed under Section 55 (2) of the Act of 1953.
As indicated above, Sub-section (2) of Section 55 of the Act of 1953 confers power upon the State to appoint one-member Tribunal to deal with the cases under Section 44 of the Act of 1953 who is or has been a District Judge or Additional District Judge having powers of the Civil Court under the Code of Civil Procedure, 1908. The Act of 1997 does not contain any power to exercise an appellate jurisdiction over the subordinate Tribunals. The hierarchy of the Tribunal is enshrined under Article 323B of the Constitution of India where, by virtue of a legislation the appropriate Government have been empowered to enact. There are several cases under the Customs and Excise Act and Income Tax Act and Recovery of Debt by the Bank and Financial 10 Institutions where the legislations have been made invoking the aforesaid constitutional provision in establishing the hierarchy of the Tribunals. In those cases, the Appellate Tribunals have been set up where the appeal against the order passed by the Original Tribunal is susceptible to be challenged whereas the Tribunal under Section 55(2) of the Act of 1953has no trapping of the Tribunal to be set up by invoking the constitutional provisions contained under Article 323B of the Constitution. The provision contained under the Act of 1997 is conspicuously absent and does not contain any specific provisions in this regard. However, beam of light can be seen from Section 6 of the Act of 1997 where the Tribunal constituted under the Act of 1997 is competent to deal with any order passed by an authority under the specified Act.
It is beyond cavil of doubt that the said Act has imbibed within the definition of "specified Act" provided under Section 2(r) of the Act of 1997. It is a solemn duty of the Court at the time of interpretation of the language employed under the provisions of the Act to give its plain and simple meaning in absence of any ambiguity. The preamble of the Act of 1997 may give aid in this regard wherein the said Act is to provide for setting up of a Land Reforms and Tenancy Tribunal in pursuance of Article 323B of the Constitution of India for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for matters connected therewith or incidental thereto. The object and purpose for establishing the said Tribunals is laudable and, therefore, the provisions contained in Section 6 of the Act of 1997 has to be assigned the meaning of to make the provision workable. At the time of promulgation of the Act of 1997, clause (a) of Section 6 contained the expression "an order in original" made by the authority under the specified Act which had a restrictive meaning but the said expression "an order in original" is subsequently replaced by the expression "any order" by virtue of West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2001.
11The expression "any order" passed by the authority under the specified Act expanded the horizon, jurisdiction and the competence of the Tribunal to deal with any cases concerning any order passed by the Authority under the specified Act. The authority has been defined under Section 2(b) of the Act of 1997 to mean an Officer, an authority or functionary exercising powers or discharging the functions as such under the specified Act. The District Judge or Additional District Judge though classified as a Tribunal under Section 55(2) of the Act of 1953 but is an authority or functionary exercising powers emanating from the specified Act i.e. West Bengal Estate Acquisition Act, 1955. Even if the word 'Tribunal' is used under Section 55(2) of the Act of 1953 yet the District Judge or the Additional District Judge acts in such capacity and passes the order conferred upon it under the specified Act.
In Bishnupada Datta (supra) the Division Bench was considering a case whether cross-objection can be filed in an Estate Acquisition Appeal before the District Judge or the Additional District Judge appointed under Section 55 (2) of the Act of 1953. The Division Bench held that such appeal is not an appeal filed before the District Judge or Additional District Judge exercising normal jurisdiction of an ordinary Civil Court but as a Tribunal appointed by the State Government and, therefore, even such order passed in such capacity is amenable to be challenged before the lower rung of the judicial system in the following:
(18) The next question therefore would be whether the learned District judge or the Additional District Judge constituting the tribunal really acts in the exercise of his normal jurisdiction as an ordinary Civil Court under the code of Civil Procedure or not in entertaining and disposing of an appeal under Section 44 (3) of the said Act. If he would be so doing then there will be no doubt that the provisions of order 41 Rule 22 would be attracted. That follows from the decision of the privy Council in the case of (3) Adai kappa Chettiar v. Chandra Sekhara, 74 LA. 264 and as approved by the supreme Court in the case of (4) N. S. Thread Co. v. Jamaes Chadwrick, AIR 1953 Supreme Court 357. This Court in upholding a party's right to file a cross-objection in the case of an appeal under Section 38 of the Bengal Money lenders Act, 1940 really proceeded upon the said basis vide (5) Ramasray v. Ibhisan AIR 1950 Cal. 372.
But in my view the appeal provided under the Act is not one before the District judge or the Additional District Judge exercising his normal jurisdiction of an ordinary Civil Court, It ,is true that the law provides that the Appellate tribunal must be composed of a single member who shall be a person, who is or has been a District Judge or an Additional district Judge. But that by itself does not lead to the conclusion that appeal is to the District Judge or the Additional District Judge exercising his ordinary jurisdiction as such. The District Judge or the Additional district Judge in disposing of the appeal disposes of as a Tribunal appointed by the State Government and he need not be the District Judge or the additional 12 District Judge of the particular district at all; further it must be remembered that the appeal which the District Judge or the Additional district Judge, appointed as the Appellate tribunal, disposes of, is nothing but a continuation of the original proceedings before the Settlement Authorities taken up for preparing or revising the entries in the settlement record; the effect of the order that may be passed by the Tribunal so constituted would be assailable in any future litigation before any Civil Court even of an authority subordinate to the District judge or the Additional District Judge and the character of the proceedings is in no way changed because of the appeal or the order made therein. On the provisions of the statute it is not difficult to conclude that when the proceedings before the Settlement authorities were undisputedly not before an ordinary civil court it remains as such in its centinuance before the Appellate tribunal. It is now well recognised that simply because the obligation to dispose of the dispute in the appeal is on a District Judge or an Additional district Judge that would not necessarily mean that he would be doing so in the exercise of his normal and ordinary jurisdiction as a Civil Court. Even in case of such assignment to a Court, it has often been held that it is not necessarily intended to be disposed by the court discharging its functions as a Civil court. The guiding principle has now been laid down by the Supreme Court in the case of (6) Huns Kumar v. Union of India, AIR 1958 Supreme Court 947. It has been held:-
"it is not every decision given by a court that could be said to be a judgment, decree or order within the provisions of the Code of Civil procedure or the Letters Patent. Whether it is so or not will depend on whether the proceedings in which it was given came before the court in its normal civil jurisdiction or dehors it as a person designate. Where the dispute is referred to the court for determination by way of arbitration as in 39 la. 197 or where it comes by way of appeal against what is steadily an award... then the decision is not a judgment, decree or order under either the Code of Civil Procedure, or the letters Patent. " The Supreme Court came to the above conclusion in deciding an appeal to the Supreme Court to be incompetent in law from a judgment of a High Court passed in an appeal under Section 19 (1) (f) of the Defence of India Act, 1939. In my view the same principles are equally applicable in deciding whether there could be a right to file a cross-objection on behalf of the respondent in a proceeding of the like nature. I have no doubt that the nature of the proceedings both before the original tribunal as also before the appellate Tribunal under Section 44 of the said Act are such that it cannot be said that it called for any judgment or order within the meaning of the Code of Civil Procedure. This view, in my opinion, is well supported by the principles underlying the decisions of this Court in the cases of (7) Mamata Ghosh Vs. Mr. Charu Chandra Mandal, 60 CWN 1032 and (8) Sudhansu Kumar Aych V. Kangal Ch. Malty, 69 CWN 908. The question of applicability of the provisions of the Code of Civil Procedure to a proceeding specifically provided under a statute was considered by this Court in the case of (9) Sahadat Khan Vs. Md. Hossain AIR 1954 Cal. 347 although this Court in the said case held that the Court of Small Causes trying a suit under Section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was really acting in exercise of its normal jurisdiction of a Civil Court and as such these proceedings before it are governed by the provisions of the Code of Civil Procedure. The supreme Court has again decided in the case of (1) Ebrahim V. Tek Chand, AIR 1953 Supreme Court; 298 that the provisions of the code are not applicable to the proceedings before the Custodian under the Administration of Evacuee Property Act, 1950, though such proceedings were pf a quasi- judicial nature. Mr. Sen has relied upon an unreported decision of the Madras High Court Notes whereof are to be found in (2) AIR 1955 NUC (Mad. 2133) which of course supports his contention and the view that I have just taken.
The Division Bench has held the mere obligation to dispose of an appeal as a District Judge or Additional District Judge would not necessarily mean that it is exercising jurisdiction which has been exercised in an ordinary jurisdiction as a Civil Court. In other words, though he has a trapping of a Tribunal but exercising jurisdiction under the specified Act and, therefore, any order passed by such authority or functionary is amenable to be challenged before the Tribunal constituted under the Act of 1997.13
The Single Bench decision in case of Kashinath Mondal & Ors.
(supra), in our opinion, does not throw light on the issues involved in the instant case because of the amendment having brought subsequent thereto under clause (a) of Section 6 of the Act of 1997.
One of the points involved in the said case was that what the type of orders comes within the purview of Section 6(a) of the Act of 1997. The Single Bench was considering the unamended provision where order made by the authority under the specified Act can be carried to a Tribunal by an aggrieved person without preferring an appeal before the learned District Judge. Since the said expression "an order in original" has been replaced by the expression "any order", we do not intend to deal with the said case in the instant matter. However, an inspiration can be drawn from the observations made in paragraph 16 thereof to the extent that the moment the Act of 1997 conferred power upon the Tribunal constituted thereunder to discharge the functions of the High Court under Articles 226 and 227 of the Constitution of India playing a supplemental role, there is no fetter on the said Tribunal who is capable of entertaining any order passed by an authority under the specified Act in the following:-
"16. Mr. Banerjee however by relying upon the observation of the Apex Court in paragraph 99 of the judgement in the case of L. Chandra Kumar vs. Union of India, reported in (1997) 3 SCC page 261, contended that the Apex Court having held that the Tribunals constituted under Article 323B of the Constitution of India should act as Court of first instance, such Tribunal cannot entertain any application against an order passed by an appellate authority. I however do not find any substance in such contention. All that was held in the case of L. Chandra Kumar (supra) was that the Tribunals will perform a supplemental role in discharging the powers conferred by Article 226 and 227 of the Constitution upon High Court and Article 32 upon Supreme Court subject to the restriction mentioned in the said decision. The Apex Court further pointed out that all decision of such Tribunals will however be subject to the scrutiny before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. Thus, the Apex Court explained that the Tribunals will, nevertheless, continue to act like court of first instance "in respect of the areas of law for which they have been constituted". Therefore, if a Tribunal is constituted also for hearing matters arising out of appellate proceedings under a specified Act, it will perform its duty as such subject to the scrutiny by a Division Bench exercising powers under Articles 226 and 227 of the Constitution. The aforesaid observation of the Apex Court cannot stand in the way of the Tribunal to hear out the grievances of an applicant against the order of an appellate authority under the Specified Act. The aforesaid contention of Mr. Banerjee is thus devoid of any substance."14
The 'authority' defined under the Act of 1997 is expansive and imbibe within itself not only the officer but the authority or the functionary discharging duties under the specified Act and, therefore, the Tribunal constituted under Section 55 (2) of the Act of the 1953 satisfies the said definition and the order is amenable to be challenged before the Tribunal constituted under the Act of 1997.
Having held so we now revert back to the merit of the case. The only point which emerges from the respective stands of the parties as to whether the Objection Case was initiated on an application filed by the predecessor of the private respondents or the Officer appointed under Section 44 of the Act of 1953, have initiated the said proceeding of its own. It is no doubt true that a period of nine months is provided for initiating the proceeding under Section 44(2a) of the Act of 1953 on an application made by the interested person and a larger period of limitation is provided in relation to a suo motu proceeding. Though the order relied upon by the respective parties passed by the Assistant Settlement Officer explicitly indicate that a suo motu proceeding was initiated but on the basis of an application taken out by the predecessor-in- interest of the private respondents.
The judgment rendered in the case of Ajoy Kumar Sarkar (supra), throws light on the above aspect wherein a distinction has been succinctly made between a proceeding originated on an application and a proceeding initiated suo motu. A point is sought to be raised by the private respondents that the writing made by the said Officer is merely an information and not an application within the meaning of Section 44(2a) of the Act of 1953 and, therefore, there is no incongruity in initiating the proceeding suo motu. The aforesaid point has been succinctly decided by the Single Bench of this Court in Ajoy Kumar Sarkar (supra) where the distinction has been highlighted in both the course of actions. It is held in unequivocal terms that if the 15 information is received from a person having no nexus or connection with the subject land, the same cannot be treated as an application but the position would have been different when the interested person has communicated the Officer appointed under Section 44 of the Act of 1953. In the latter situation it will be regarded as an application and not a mere information being the source of the suo motu proceeding in these words:-
"5. The first point which has been raised by way of challenging the validity of the aforesaid orders and the proceedings is that since, admittedly the revisional proceeding had been initiated on the basis of an application, though by some outsiders, the same cannot be treated as a suo moto proceeding to avoid the bar of limitation of nine months imposed by the statutory provisions. Section 44(2a) of the said Act envisages two procedures, distinct in nature, for revision of the finally published records of rights, namely, one on an application for which the period of limitation is nine months and another on the motion of the Revenue Officer himself for which the period of limitation, at the relevant time, was thirty years. Upon a reading of a different provisions of the said Act and the rules framed thereunder, it can be seen that proceeding the final publication of the records of rights, there are different stages, as provided in Schedule 'B' to the West Bengal Estates Acquisition Rules creating different forums for submission of objections regarding the correctness of the records of rights by different cross-sections of persons interested in the lands concerned, which include landlords, tenants and persons, who have derived or lost interest in any khatian. After completion of all stages, including the attestation and draft publication of such records an disposal of objections made in course thereof, the Revenue Officer finally publishes the records of rights in conformity with Section 44(2) of the said Act and Rule 30 of the aforesaid Rule. The first type of procedure creates a forum and lays down the method for revision at the instance of a party having or claiming to have present interest in the concerned lands, who had opportunity of placing his materials, at different stages provided for by Schedule 'B' to the Rules for revision of finally published records of rights. Such revision must, of necessity, be founded on some omission or overlooking on the part of such a party and a shorter period for bringing such omission and overlooking on an application is well-justified. The second type of procedure is intended to meet situations, which arise due to mainly, fraudulent suppression of materials which, if known, at the time of final publication of he records of rights, would have led to different entries. Since the source of such information cannot be the interested party himself, the acquisition of knowledge requisite for revising the finally published records of rights becomes, more or less, fortuitous or a matter of chance and a longer period has been, accordingly, provided for such a revision. If the source for such revision is restricted to the personal knowledge of the Revenue Officer, the desired purpose will be totally frustrated. The knowledge, therefore, necessarily must be allowed to be acquired through different and sundry source. Any informant may bring relevant facts within his knowledge to the notice of the Revenue Officer by application or otherwise. Viewed from such an angle, the impugned suo moto proceeding initiated on the basis of an application of outsiders cannot be said to be not maintainable or invalid or not in the nature of suo moto proceeding nor does it get barred by limitation being beyond the period of nine month. In this connection, I would also like to keep on record that a point raised, about the invalidity of the amending Act 20 of 1982, whereby the period of limitation has been extended to thirty years, for absence of assent of the President is without any substance as a reference to the concerned Gazette would, at once, make it clear that President's absent had been obtained on 4 th of November, 1982 16 (vide Calcutta Gazette, Extraordinary dated 4th November, 1982). The first point, therefore, must be answered against the petitioner."
Taking the lead from the ratio of the Ajoy Kumar Sarkar (supra) the predecessor-in-interest of the private respondents were all along claiming as 'Bargadars' in respect of a subject land and, therefore, the communication cannot be said to a mere information but an application for which the lesser period of limitation is provided. It was beyond the competence of the Assistant Settlement Officer to initiate a suo motu proceeding after receiving the said application and precisely for such reason the Additional District Judge in an Estate Acquisition Appeal in no terms have held that such action was impermissible and contrary to the provisions of law. Admittedly, the said application was taken out after the period of limitation provided under Section 44(2a) of the Act of 1953 and, therefore, we do not find any infirmity and/or illegality on the part of the Additional District Judge in holding so.
It takes us to another situation where the Tribunal proceeded to upset the aforesaid finding of the Additional District Judge in an Estate Acquisition Appeal, more particularly, when the challenge was restricted to a portion of the impugned order by which the matter was remanded to the Assistant Settlement Officer. The jurisdiction is exercised by the Tribunal within the four corners of the reliefs claimed therein and in absence of any further proceeding having initiated at the behest of the private respondents against such finding, it should not have overreached the same. The only point before the Tribunal was whether the Additional District Judge was justified in remitting the matter to the Assistant Settlement Officer after holding that the suo motu proceeding was bad. The Tribunal should not have enlarged the scope of the tribunal application nor should venture upon to decide the order in its entirety in absence of any independent tribunal application filed by the private respondents or any other course available under the Act or the Rules framed therein.
17The order of the Tribunal is infirm and the illegality is patent and, therefore, cannot be sustained. The impugned order of the Tribunal is thus set aside.
As we have already held that the moment the Additional District Judge categorically held that the initiation of the proceeding by the Assistant Settlement Officer of its own is bad, there is no justification in remanding the matter to the Assistant Settlement Officer for further consideration. Accordingly, the portion of the order by which the Additional District Judge remanded the matter to the Assistant Settlement Officer, is hereby quashed and set aside.
The writ-petition being COLRT 2 of 2022 is thus disposed of. No order as to costs.
(Harish Tandon, J) (Shampa Dutt (Paul), J)