Calcutta High Court (Appellete Side)
Parthajit Paul & Another vs State Of West Bengal & Ors on 4 May, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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54 4.5.16 W.P.L.R.T. 222 of 2015
sn
PARTHAJIT PAUL & ANOTHER
VS.
STATE OF WEST BENGAL & ORS.
Mr. B.R. Bhattacharya..Sr.Advocate
Ms. Usha Maity
Mr. Sakya Maity
..for the petitioners
Mr. Saptangshu Basu..Sr.Advocate
Mr. Santimoy Bhattacharya
..for the respdts.5-19
Mr. R.L. Moitra..Sr. Advocate
Mr. Ziaul Haque
..for the respondent 4
Mr. Chandi Charan De..Ld.Addl.G.P. Mr. S. Bandopadhyay ..for the State This is an application filed under Article 226 of the Constitution of India assailing a final order dated October 16, 2015 passed by the West Bengal Land Reforms and Tenancy Tribunal in the matter of Joydeb Kr. Paul Vs. State of West Bengal & Ors. (In re : O.A. No.3968 of 2003(M.A. 620 and 507 of 2015(LRTT).
By virtue of the impugned judgement, the original application of the applicant was dismissed on the ground that the applicants had not availed of the remedial measure after rejection of their application under Section 51BB of the West Bengal Land Reforms and Tenancy Tribunal Act, 1955 (hereinafter referred to as the said Act, 1955) preferring a statutory appeal against the above order. There was observation of the learned Tribunal that it could not be said that the remedial measure available under the said Act, 1955 was not adequate or should have caused undue hardship to the petitioner. There was further observation that it was evident from the document filed by the private respondents as also the State respondents that the record of rights had been prepared in the name of Birendran Kr. Pal, the predecessor of the private 2 respondents.
After perusing the materials on record, we find that admittedly correction of record of rights in respect of the land in question was depending upon the interpretation of the amended provision of Section 3A of the said Act, 1955. By filing the original application, the petitioners challenged the action on the part of the respondent authority to follow the above procedure while rejecting their application by passing an order under Section 51BB of the said Act, 1955.
Having heard the learned Counsel appearing for the respective parties as also after considering the fact and circumstances of this case, we are of the opinion that a point of law with regard to interpretation of Clause (b) of sub- section (3) of Section 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1955 is involved in this writ application. This issue has already been decided by us by a judgement dated March 11, 2016 in the matter of Sri Bidyapati Pal & Ors. Vs. The State of West Bengal & Ors. (In re:
W.P.L.R.T. 19 of 2016) and the relevant portion of the above decision is quoted below:-
" However, we may restrict our observations only up to the extent that on a harmonious reading of the provisions of the WBLRTT Act, 1997 which has already been taken into consideration by us hereinabove, the learned Tribunal possesses a special status of exercising a discretionary power of High Court sitting in writ jurisdiction under Articles 226 and 227 of the Constitution of India as a Court of first instance except exercising such a power of a Division Bench of a High Court sitting in writ jurisdiction for review of an order of the learned Tribunal created in exercise of the power of Article 323A or 323B of the Constitution of India.
It necessary to record the relevant portions of the decision of Shiba Prasad Sahoo (supra) as under:
"22. Therefore, on a proper consideration of the aforesaid clauses, viz. clauses (a) and (b) of sub-section (3) of section 10 of the Tribunal Act, the Tribunal can entertain an application at the instance of an applicant if he/she satisfies the Tribunal that remedial measures under the specified 3 Act are not adequate or causes undue hardship to the applicant."
Therefore the learned Tribunal should not time and again reject an original application by adopting a straight jacket formula to direct a litigant to avail of the remedial measures before approaching the Tribunal."
In view of the discussions and observations made hereinabove, the impugned order cannot be sustained in law and the same is quashed and set aside remanding the Original Application back to the learned Tribunal for its consideration afresh on merits.
We further make it clear that we have not entered into the merits of this writ application and all points are kept open for consideration by the learned Tribunal.
Upon prima facie consideration of the fact that the petitioners were enjoying an order of status quo passed by the learned Civil Judge (Junior Division), 1st Court, Sreerampore, District Hooghly in T.S. Case No.163 of 2001 has already been withdrawn during the pendency of this writ application as also the pre-occupation of the learned Tribunal to take up this application, parties are directed to maintain status quo till the next date of hearing of the Original Application by the learned Tribunal when the extension of the above interim relief may be considered by the learned Tribunal.
This writ petition is thus disposed of.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
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(Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.) 5 6