Calcutta High Court (Appellete Side)
No Body Appears For The vs S. Venkata Reddy Reported In 2010 (I) Scc ... on 27 June, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
27.6.2011
ks W.P.L.R.T. 733 2004
Mr. Lalit Mohan Mahato
... For the State.
Pratap Kumar Ray, J.
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No body appears for the petitioner. Matter was earlier adjourned.
Heard the learned Advocate appearing for the State. In view of tenor of
the order impugned, in absence of the petitioner, matter could be disposed
of.
Impugned order dated 15th July, 2004 passed by the West Bengal Land
Reforms and Tenancy Tribunal in T.A. No.1238 of 2000(LRTT) reads such:
ORDER
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"15.7.2004.
Both sides are present.
Affidavit of service filed by the Ld. Advocate for the applicant be kept on record.
The Ld. Advocate for the applicant is directed to file second copy of the application. Accordingly, the Ld. Advocate files a second copy of the application, which be kept on record.
The applicant in this application has challenged a notice dated 3.10.94 issued by the Revenue Officer in the office of BLLRO, Habibpur, District: Malda. The said Notice is Annexure 'A' of C.O. No.16394 (W) 1994 renumbered as T.A. No.1238/ (LRTT). By the said notice the applicant was intimated that under the provisions of West Bengal Estates Acquisition Act, 1953 the plots of land mentioned in the said notice vested in the State free from encumbrances as those plots of land were not retained by the intermediary. Possession of those plots could be taken over by the State Government on 5.10.1994.
It is important to mention here that the aforesaid notice was issued pursuant to a final decision passed in Case No.10/HBP/1994 under Section 44(2a) of the W.B. Estates Acquisition Act, 1953. The applicant has chosen 2 not to question the validity of the aforesaid case under section 44(2a) of the W.B.E.A. Act, 1953 or the orders passed therein.
The Ld. Advocate appearing for the applicant submits that it is evident from the said notice that the said notice was issued under section 10(2) of the W.B. Land Reforms Act, 1953. Admittedly, the West Bengal Land Reforms Act is not of 1953 but of 1955 and the West Bengal Estates Acquisition Act is of 1953 and Section 10(2)of the said Act empowers the appropriate authority to take possession of the land vested in the State which have not been retained by the intermediary.
It is now well-settled by series of decisions of Supreme Court that wrong reference of section or non-reference of section does not vitiate any action or the notice provided the jurisdiction to issue such notice or take such action can be traced out. No doubt under section 10(2) of the W.B.E.A. Act, 1953 the appropriate authority can take possession of the land following the procedures mentioned therein. Therefore, we are of the view that a wrong reference to West Bengal Land Reforms Act does not vitiate the notice under challenge.
For the reasons mentioned herein above, C.O. No.16394 (W)/1994 renumbered as T.A. 1238/2000(LRTT) is dismissed.
Interim order if there be any is vacated. ...."
On a bare reading of the impugned order it appears that in the original application petitioner challenged the notice issued under Section 10(2) of the West Bengal Estate Acquisition Act, 1953, for taking delivery of possession of the vested land as was not retained by the Big raiyat. The petitioner challenged the notice on the ground that in the notice, concerned Act has been mentioned as West Bengal Land Reforms Act and not West Bengal Estate Acquisition Act. Learned Tribunal held that such mistake cannot be a ground to challenge the notice. Learned Tribunal further has discussed the legal point that when the original order of vesting is not under challenge, there is no scope to challenge the notice. It is a settled law that if the basic order is not challenged but a consequential order is challenged, application is not 3 maintainable. It is a legal obligation to challenge the basic order and if it is found wrong, consequential order may be examined by Court to test its legality. Reliance is placed to the Judgment passed in the case Edukanti Kistamma v. S. Venkata Reddy reported in 2010 (I) SCC 756 paragraph 22. In this case the Apex Court relied upon the earlier views expressed in two namely P. Chittaranjan Menon v. A. Balakrishnan reported in 1977 (3) SCC 255, H.V. Pardasani v. Union of India reported in 1985 (2) SCC 468, Government of Maharashtra v. Deokar's Distrillaries reported in 2003(5) SCC 669, Kundur Rudrappa v. Mysore Revenue Appellate Tribunal reported in 1975 (2) SCC 411, Sharif Ahmed v. R.T.A. reported in 1978(1) SCC 1 and A.P.S.R.T.C. v. S.T.A.T. reported in 1998 (7) SCC 353.
Having regard to the said legal position, mere challenge of a notice under Section 10(2) of the West Bengal Estate Acquisition Act without any challenge of order of vesting, original application was not maintainable. Learned Tribunal committed no illegality to pass the impugned order to face the wrath of judicial review of this Court exercising power under Article 226 of the Constitution of India.
The writ application accordingly stands dismissed. No order as to costs.
Let this order be communicated to the learned Tribunal below and to the petitioner by the High Court Registry.
(Pratap Kumar Ray, J.) 4 I agree.
(Md.Abdul Ghani, J.)