Calcutta High Court (Appellete Side)
Sree Sree Baneswar Shib Thakur Shebait ... vs Kolkata Municipal Corporation & Ors on 29 July, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
Mr. Partha Chakraborty, Ms. Sulogna Chowdhury, ...for the petitioner.
Mr. Biswajit Mukherjee, Mr. Fazrul Haque, Ms. Manisha Nath, ...for the K.MC.
An affidavit in opposition has been filed in respect of the matter. Since the prayer portion was allowed to be corrected, I have granted liberty to file the said opposition beyond time.
At this stage the petitioner seeks time to file affidavit in reply. Normally, this would have been the right of the petitioner.
In this case however, the writ petition discloses that the part of the lands alleged by the petitioner to belong to it have been held to comprise Thika Tenancy by an order passed by the appropriate authority, under the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 and that the entire premises and not just one part has vested in the State of West Bengal in terms of Section 4 of the said Act with effect from January 18, 1982. Some persons, who are not parties to the writ petition and who the writ petitioner has ignored as unauthorised occupants and trespassers were held to be thika tenants in respect of five cottahs of the entire premises. The rest of the premises which were also 2 treated to be vested in the State of West Bengal were held to be that over which the officer in charge, Cossipore Regional Thika Tenancy office or his authorised person has dominion over.
No challenge has been made to the order dated April 30, 2013 by the writ petitioner who it itself disclosed the order at Annexure P/4 to the writ petition and it has been admitted by the writ petition that a copy of the appeal was served on the writ petitioner through the managing sebayat before such order was passed. As such, when there is a finding by the appropriate statutory authority that the entire premises has vested in the State of West Bengal the writ petitioner never had locus to file this writ petition claiming to be the owner of the property or for adjudication of whether the property could have been treated to be a thika tenancy before this Court in the single Bench. This is because of the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 since the said Act of 2001 is a Specified Act within the meaning of Sections 7(2)(r) of the Act of 1997. The provisions of the Act of 1997 make it incumbent for the petitioner to challenge the order of the learned Thika Tenancy Controller before a Hon'ble Division Bench of this Court. This Court has no jurisdiction to entertain a judicial review as a court of first instance from the learned Thika Tenancy Tribunal in view of the judgment in the case 3 L. Chandra Kumar vs. Union of India report in AIR 1997 SC 1125.
Accordingly, this writ petition is dismissed without granting the petitioner any opportunity to file the affidavit in reply. The writ petition was filed in 2019. Needless to mention the writ petitioner had proceeded with due diligence in the matter on the assumption that this Court has jurisdiction which it did not.
However, dismissal of the writ petition shall not prevent the writ petitioner from approaching the appropriate forum for any relief as may be advised to it.
No order as to costs.
(Protik Prakash Banerjee, J.)