Calcutta High Court (Appellete Side)
Mr. Sankar Prosad Banerjee .. For The vs State Of W.B. & Ors.) on 20 April, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
20. 4.
2011
skm W.P.L.R.T. 153 of 2010
Mr. Sankar Prosad Banerjee .. For the
petitioner.
Mr. Sandip Das .. For the
private respondent.
Mr. Satyabrata Majumder .. For the
State respondents.
Pratap Kumar Ray, J.
Assailing the order dated Ist February, 2010 passed by West Bengal Land Reforms and Tenancy Tribunal, 2nd Bench, in Case No.TA.526B/2000(LRTT) renumbered from Civil Order 5428(W) of 1996, this writ application has been filed.
The impugned order reads such.
"01.02.10 The record is placed for passing order. We have already heard the Ld. Counsel for the applicant and the Govt. Representative. At the very outset, it should be mentioned that this applicant filed this application before the Hon'ble High Court, Calcutta against the respondents as regards notice issued by the Revenue Officer working as BL&LRO, Diamond Harbour II u/s. 21B,50 and 51 of the West Bengal Land Reforms Act, 1955, read with Rule 14(i) of the Rules of the said Act for recoding the name of respondent no. 7 as bargadar in respect of 61 decimal of land in plot no.119 of Mouza Kolokhali, P.S. Diamond Harbour, Dist. 24 Pgs. South and the said application was registered as C.O. 5428(W)/96.
Subsequently on the creation of this Tribunal, the said application came to be transferred here and registered as T.A. 526B/2000.2
Upon hearing both sides and in view of the materials available on record, we find that Block Land & Land Reforms Officer, Diamond Harbour II, respondent no. 5 herein being the Revenue Officer, finally disposed of the proceeding and recorded the name of respondent no.7 as bargadar in respect of the subject land.
The Ld. Counsel for the respondent no. 7 and also the Ld. Govt. Representative taking us to the provision of the West Bengal Land Reforms & Tenancy Tribunal Act and also to the provisions of the West Bengal Land Reforms Act urged that as the proceeding in question as could be registered u/s. 21B, 50 and 51 of the Act has been disposed of by the final order, the present application is not maintainable as the applicant without approaching the proper forum made available to him under the provisions of the West Bengal Land Reforms has come to challenge the order in question. In su8pport of the contention reliance has been placed on the decision reported in 1982(1) CLJ page 61 and also to the provision of Section 10 of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997.
The Ld. Counsel for the applicant in his turn submitted that the applicant is not debarred from approaching the jurisdiction of this Tribunal inasmuch as the provision of Section 10(3) of the West Bengal Land Reforms & Tenancy Tribunal very much arrests the scope to give relief to the applicant in respect of the order which has been recorded by the respondent No.5, Block Land & Land Reforms Officer.
It can well be derived from the xerox copy of the judgement passed by the Revenue Officer concerned on 24.11.95 in disposing barga case No.30/95 it has been concluded that the respondent no. 7 was a bargadar in respect of 61 decimal of land of plot no. 119, appertaining to khatian no. Agri-363 of mouza Kolokhali, J.L. 52 and his name has accordingly been recorded there as bargadar under the applicants in the record of rights ( Anneuxre- C) after giving opportunity of being heard to this applicant. The relevant area of the original application ( C.O. 5428(W(/96) goes to show that in fact, the applicant touched and challenged the said order passed by the Revenue Officer as regards barga right of the respondent no.7 and disputed the rccording and also attempted to get the order to the effect that such proceeding is illegal.3
Section 10, Sub-Section (1) of the West Bengal Land Reforms & Tenancy Tribunal Act, 1997 provides that subject to the provision of Section 6 and other provisions of this Act, a person aggrieved by any order passed by authority or any action taken either by the authority or by the State Govt. may prefer an appeal to the Tribunal for redressal of his grievance. Sub- Section (3) has clearly provided that save as provided in this Act the Tribunal shall not admit an application referred to in sub- section (1), unless it is satisfied that the applicant has availed of all remedial measures available to him under the relevant specified Act and (b) the remedial measures available under the provision of the relevant specified Act are not adequate or shall cause hardship to the applicant.
In the decision reported in 1982(1) CLJ, page 61 ( Narayan Chandra Kundu Vs. State of W.B. & Ors.), the Hon'ble High Court, Calcutta in concluding the spirit of Section 54 and 55 of the West Bengal Land Reforms Act has been pleased to observe that where right of appeal is provide by statute, no person aggrieved cannot be allowed to avail of the redress in the forum without approaching the appellate form before coming to the Hon'ble Court by filing writ application. In an unreported decision of the Hon'ble High Court, Calcutta Their Lordships the Hon'ble Justice B. Bhattacharya and Hon'ble Justice A.K.Bhattacharya in disposing WBLRT 662/06 (Samarendra Nath Das & Ors. Vs. the State of W.B. & Ors.) have been pleased to lay down that the Tribunal rightly refused to go into the merit of the matter when there was the specific provision of appeal against the order which was impugned before the Tribunal.
In the case before us, the applicant being aggrieved by the recording of the name of respondent no. 7 as bargadar in the subject plot has directly approached the jurisdiction of Hon'ble High Court Calcutta with a view to have the redress so that the order passed by the Revenue Officer was not given effect and also prayed for further direction that such order was quashed accordingly. As we have already indicated, the order challenged by this proceeding , as a mater of fact, was recorded by the Revenue Officer by invoking the power as laid down in the provision of West Bengal Land Reforms Act and there is express provision for filing appeal against such order. Further, there is no averment or assertion n the application or even there is no circumstances made out in any corner of the application that the remedial measures available under the 4 provisions of the relevant specified Act are not adequate or shall cause hardship to the applicant. Accordingly, in the light of the propositions as laid down in Section 10 of the West Bengal Land Reforms & Tenancy Tribunal Act and also in view of the principles of the decisions as referred hereinbefore we are of the humble view that the present application is not maintainable at this stage. As provided by law, the applicant has to approach the jurisdiction of the Appellate /Authority created under the provision of west Bengal Land Reforms Act.
Consequently, we hold that the instant application is not maintainable.
Accordingly, it is dismissed.
Let a plain copy of this order duly countersigned by the Principal Officer of the Tribunal be made over to the Ld. G.R. for communication to the BLLRO concerned for information and Xerox certified copy of the order be made over to the applicant/s, if applied for, on payment of requisite court fees.
Sd/ D.K.Agasty M.A.Jalil"
Having regard to the tenor of the order, we are of the view that there is no scope of judicial review exercising our power under Article 226 of the Constitution of India, on the question of maintainability of the application, in view of appeal provision in the concerned statute.
Having regard to such, this writ application stands dismissed. There will be no order as to costs.
Affidavit of Service on behalf of the petitioner as filed in Court today be kept on record.
Urgent xerox certified copy of this order, if applied for, be given. 5
(Pratap Kumar Ray, J.) I agree.
(Md. Abdul Ghani, J.)