Calcutta High Court (Appellete Side)
Tirumula Realcon Pvt. Ltd. & Anr vs State Of West Bengal & Ors on 2 April, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
2.4.2014
ac
W.P.L.R.T. 99 of 2012
Tirumula Realcon Pvt. Ltd. & Anr.
-versus-
State of West Bengal & Ors.
Mr. Saktinath Mukherjee,
Mr. Santimoy Panda,
Mr. Tapas Sil,
Mr. Debanjan Mondal,
Mr. Arnab Sardar.
... For the Petitioners.
Mr. Satyajit Talukdar.
... For the Respondent No. 4.
Mr. Chandi Caharan De, Mr. Soumitro Bandyopadhyay.
... For the State.
Miscellaneous Case No. 38 of 2011 was initiated on an application submitted by one Nisith Kumar Agarwal being the constituted attorney of Smt. Sashi Lama before the concerned Block Land & Land Reforms Officer, Matigara Block, District - Darjeeling. It was stated by the said constituted attorney of Sashi Lama therein that on the death of the mother of Sashi Lama, viz. Champa Devi Singh, the recorded owner of several plots of land, including land within Khatian No. 263, Sashi Lama alongwith her two brothers and three sisters, namely, Basanti Lama, Prabin Lama, Binita Lama, Navin Lama and Sudeshna Lama, inherited the said landed properties lying in the said khatian in equal shares. It is, thus, claimed that the said Sashi Lama inherited 1/6th share in the land lying in the said khatian no. 263. It was alleged therein that the name of the said Sashi Lama was also recorded in the record of rights to the extent of her interest in the said land, but subsequently such recording was illegally struck out without notice to her. Complaining such striking out of her name from the record of rights, the said application was filed through the constituted attorney of the said Sashi Lama who prayed for restoration of the recording of her name as 1/6th owner of the said property in the record of rights. The said application was taken up for 2 hearing by the concerned Block Land & Land Reforms Officer on 1st September, 2011 when the said revenue officer after taking note of the pendency of a partition suit being Title Suit No. 52 of 2011 filed by the said Sashi Lama in respect of the disputed property, passed an order suspending further proceedings of the said miscellane-ous case with a rider that further proceeding of the said misc. case will be taken subject to the direction from the Learned Court or from any other appropriate judicial authority. Since then, the proceeding of the said miscellaneous case remained in a dormant stage.
Under such circumstances, the constituted attorney of Smt. Sashi Lama filed an application being O.A. No. 30 of 2012 (LRTT) before the West Bengal Land Reforms & Tenancy Tribunal seeking issuance of direction upon the concerned Block Land & Land Reforms Officer for disposal of the said miscellaneous proceeding within a time bound period without disclosing the stay order passed by the said Block Land & Land Reforms Officer as aforesaid. When the said original application was taken up for hearing on 7th March, 2012; the writ petitioners were present before the Learned Tribunal and they through their Learned Advocate made a request to the Tribunal for issuing direction upon the applicant therein for service of a copy of the original application upon them.
Incidentally it may be mentioned herein that the writ petitioners herein purchased the said property from the last recorded owners thereof, viz., Agarwalas who in their turn purchased the said property from the legal heirs and heiresses of Champa Lama, the admitted owner of the said property.
Though, the writ petitioners were impleaded as respondent nos. 4 & 5 in the said proceeding, still then, the Learned Tribunal without issuing any direction upon the applicant for effecting service of copy of the said application upon the writ petitioners, disposed of the said original application on 7th March, 2012 without even allowing the writ 3 petitioners to participate in the said proceeding effectively. By the said order, the respondent no. 3, namely, Block Land & Land Reforms Officer, Matigara Block, District - Darjeeling, was directed to dispose of the said miscellaneous case no. 38 of 2011 within a period of six months from the date of communication of the said order after hearing all the interested parties in accordance with law.
In this connection, we feel it necessary to mention here that even the order which was passed by the concerned Block Land & Land Reforms Officer on 1st March, 2011 suspending the further proceeding of the said miscellaneous case till the decision of the partition suit was not brought to the notice to the Learned Tribunal. Even the said order was not challenged by the applicant in the said proceeding before the Tribunal. The Learned Tribunal passed the aforesaid direction in ignorance of the order of stay, passed by the said Block Land & Land Reforms Officer as mentioned above. Thus, in effect the Learned Tribunal while passing the said order, neither considered the legality of the stay order passed by the said Block Land & Land Reforms Officer, nor vacated the said stay order. Thus, the stay order passed by the said Block Land & Land Reforms Officer remained untouched and operative.
The legality and/or propriety of the said order passed by the Learned Tribunal on 7th March, 2012 in O.A. No. 30 of 2012 (LRTT) is under challenge in this writ petition at the instance of the petitioners who are respondent nos. 4 & 5 before the Learned Tribunal.
After hearing Mr. Mukherjee, Learned Senior Counsel, appearing for the petitioners and Mr. Talukdar,
Learned Advocate, appearing for the applicant/respondent no. 4, we hold that when the writ petitioners were impleaded as respondent nos. 4 & 5 in the said proceeding, the Learned Tribunal ought not to have disposed of the said proceeding without being satisfied about the service of notice of the said 4 tribunal application upon those respondents in the present case. By not effecting service of the copy of the said application upon the writ petitioners the Learned Tribunal did not allow the writ petitioners to participate in the said proceeding effectively.
That apart, in our considered view a proceeding which was stayed by the concerned Block Land & Land Reforms Officer could not have been expedited by the Learned Tribunal so long as the stay order was in operation.
We have perused the entire order sheet relating to the proceeding of the said miscellaneous case and we find that the stay order which was passed by the concerned Block Land & Land Reforms Officer on 1st September, 2011 remained in operation at the point of time when the Learned Tribunal disposed of the said original application and the order by which said misc. case was disposed of, was passed by the Block Land & Land Reforms Officer during the period when the said stay order was in operation.
We, thus, hold that the Learned Tribunal disposed of the said proceeding not only in gross violation of the principle of natural justice, but also committed an illegality in directing the Block Land & Land Reforms Officer to dispose of the said miscellaneous case which remained stayed till the disposal of the partition suit. In our view, a dormant proceeding cannot be expedited during the period of its stay. Thus, the said order which was passed by the Learned Tribunal in hot haste on 7th March, 2012 in O.A. No. 30 of 2012 (LRTT) cannot be allowed to be retained. The said order, thus, stands quashed.
Though, this order of the Tribunal is the subject matter of challenge in this writ petition, but still then for doing complete justice to the parties, we feel it necessary to consider the legality of the subsequent order passed by the concerned Block Land & Land Reforms Officer on 14th May, 2012 in pursuance of the direction passed by the Learned Tribunal which is brought on record by the petitioner by way of 5 supplementary affidavit. By the said order, the prayer of Sashi Lama for restoration of recording of her name in the record of rights was allowed by the concerned Block Land & Land Reforms Officer. Since the said order was passed without vacating the order of stay passed by the Revenue Officer earlier and during the continuance of the stay order, we hold that the said order also cannot be retained on record.
That apart, since the partition suit is still pending for decision before the competent civil court which in our view is the appropriate forum to decide the rival claims of the parties regarding their title in respect of the said disputed property, the Revenue Officer in all fairness should not have disposed of the said miscellaneous proceeding until the said partition suit is finally decided. The Revenue Officer while discharging his duty under the West Bengal Land Reforms Act for correction of record of rights cannot decide the rival claims of the parties regarding title in respect of any property. As such, we have no hesitation to hold that the order of stay which was passed by the said Block Land & Land Reforms Officer on 1st September, 2011; was absolutely a justified order and thus we confirm the said order and stay further proceedings of the said miscellaneous case till the disposal of the said partition suit.
We, thus, dispose of this writ petition by keeping the said miscellaneous Case being Misc. Case No. 38 of 2011 alive with a direction upon the concerned Block Land & Land Reforms Officer to decide the same on merit in the tune of the judgment and decree to be passed in the said partition suit.
We are also informed that a suit for declaration of title being Title Suit No. 52 of 2011 has also been filed by the writ petitioners against the said Sashi Lama in respect of the very same disputed property and both the said partition suit and the declaratory suit are pending before the Learned Civil Judge (Senior Division) at Siliguri.
6Since the parties in both the partition suit as well as the declaratory suit are same and the suit property in both the suit are also identical and issues involved in both the suits are mostly identical and these common issues can be resolved by common set of evidence, we feel that both the suits being Title Suit No. 52 of 2011 filed by Sashi Lama, applicant/respondent no. 4 herein, and the suit for declaration being Title Suit No. 52 of 2012 filed by the writ petitioner against Sashi Lama should be heard analogously for avoiding conflict of decisions and for saving litigation costs of the parties.
We, thus, request the Learned Trial Judge to expedite the disposal of those suits as far as possible, but preferably within one year from the date of communication of this order.
The appeal is, thus, disposed of by setting aside both the orders; one passed by the Learned Tribunal on 7th March 2012 in O.A. No. 30 of 2012 and the other passed by the concerned Block Land & Land Reforms Officer on 14th May, 2012 in Misc. Case No. 38 of 2011.
Urgent xerox certified copy of this order, if applied for, be given to the petitioner as early as possible.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.)