Calcutta High Court (Appellete Side)
Sri Nemai Chandra Kundu vs Sri Kalyan Das & Ors on 21 August, 2018
Author: Dipankar Datta
Bench: Dipankar Datta
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8.2018
SAT 538 of 2015
Sri Nemai Chandra Kundu
-vs-
Sri Kalyan Das & ors.
Mr. Saptanshu Basu,
Mr. Ayan Banerjee,
Ms. Reshmi Ghosh........................For the applicants
Mr. Hiranmoy Bhattacharya,
Mr. Saugata Roy.........................For the respondents
A suit for declaration and permanent injunction instituted by the appellant
was dismissed by the trial court by its judgment and decree dated July 31, 2012.
The decree passed by the trial court was carried in appeal; however, the first
appellate court by its judgment and decree dated December 18, 2014 upheld the
decree and dismissed the appeal. This second appeal is directed against the
aforesaid decree of the first appellate court.
Mr. Basu, learned senior advocate for the appellant, submits that a
substantial question of law is involved in the second appeal requiring
adjudication by this Court. According to him, the first appellate court contrary to
all evidence on record erred in law in returning a finding that the property-in-suit
is a public debuttor property, although the trial court had held it to be a private
debuttor property. It is submitted that only because the local people have been
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using the 'pukur' (being part of the property-in-suit) would not make it a public
property.
While hearing Mr. Basu, we have looked into the documents annexed to
the application for stay, more particularly the plaint. What struck us immediately
was the pleading in paragraph 19 of the plaint and the prayer clauses, which are
quoted below:
"19. That the plaintiff and the proforma defendant no. 1 and 2 are jointly
entitled to declaratory relieves from the Ld. Court that i. They have right,
title and interest to the suit property which is mention in the schedule
bellow. ii. That the plaintiff and the Proforma defendants No. 1 and 2 are the
Rayat in respect of the suit property. iii. That the properties mentioned in
schedule bellow that is the pond 'Kathma Dighi' is not liable to vest in the
defendant state."
********
"The plaintiff there for prays:-
For a judgment and decree declaring:
a) The plaintiff has right title and interest jointly with the proforma defendant No. 1 & 2 to the property in schedule bellow (sic below).
b) The suit property 'Kathma Dighi' is not liable to vest in the state.
c) For permanent injunction restraining the defendant No.1, 2 & 3 from taking any step to disturb the peaceful possession of the plaintiffs and that of the proforma defendant no. 1 & 2 over the suit property.
d) Such other relief or relieves as law and equity would allow in favour the plaintiff."
(underlining for emphasis by us) In view of the underlined portion as above, we had enquired as to how the suit could be maintainable before the trial court in the first place, having regard to the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereafter the 1997 Act) read with Section 9 of the Code of Civil Procedure (hereafter the CPC). Mr. Basu sought to explain that proceedings under the West 3 Bengal Land Reforms Act, 1955 (hereafter the 1955 Act) having been initiated against the vendor of the appellant, he had exercised option for retaining certain lands while giving up other lands which had vested in the State Government; and that the 'pukur' having been retained by such vendor, and a declaration simplicitor having been prayed for by the appellant, the suit was well-nigh maintainable. In support of his submission, Mr. Basu relied on the decisions of this Court reported in 82 CWN 335 (Jharna Ghosal v. Satyendra Prosad Dhar) and 89 CWN 168 (Bishnupada Khatua and anr. v. State of West Bengal).
The contentions urged by Mr. Basu have to be examined in the light of the relevant statutory provisions.
Section 9 of the CPC imposes a fetter on the civil courts from taking cognizance of suits of civil nature, which are either expressly or impliedly barred.
Sections 6 and 8 of the 1997 Act provide as follows:
"6. Jurisdiction, power and authority of Tribunal.- Subject to the other provisions of this Act the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to-
a.) any order made by an Authority under a specified Act; b.) an application complaining inaction or culpable negligence of an Authority under a specified Act;
c.) an appeal against an order of the Mines Tribunal appointed under Section 36 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954);
d.) application relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any Act under the provisions of a specified Act;4
e.) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.
8. Exclusion of jurisdiction of courts.- On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or ant Civil Court except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act."
A bare reading of the aforesaid statutory provisions would reveal that the tribunal constituted under the 1997 Act would have the jurisdiction, power and authority to hear applications relating to matters under any provision of a specified Act and that except for the jurisdiction of the High Court sitting in a Division Bench exercising writ jurisdiction and jurisdiction of superintendence under Articles 226 and 227 of the Constitution respectively, as well as jurisdiction exercised by the Supreme Court, no other Court including a civil court shall entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act.
Section 2(r) of the 1997 Act lays down what is meant by a specified Act. Inter alia, it means the 1955 Act. Section 3 of the 1997 Act ordains that the provisions of such Act shall have effect notwithstanding anything to the contrary 5 contained in any other law for the time being in force or any custom or usage or in any contract, expressed or implied.
Bearing in mind the aforesaid provisions, let us now consider whether the appellant could have instituted the suit before the trial court and whether it could have tried such suit.
Our answer is in the negative for the reason that follows. The property-in-suit, inter alia, is a 'pukur'. The State of West Bengal, represented by the Collector of Uttar Dinajpur district and the Block Land and Land Reforms Officer, Kaliyaganj have been impleaded as the proforma defendants 5 and 6. Once the appellant as plaintiff has claimed a declaratory decree that he along with others has right, title and interest in respect of the 'pukur' and that part of the property-in-suit, i.e., 'Kathma Dighi', is not liable to vest in the State, he has invoked the jurisdiction of the civil court to obtain a declaration in respect of his right over 'Kathma Dighi/the pukur', without even arraying the State and its officer as the principal defendants. Whether or not 'Kathma Dighi/the pukur' has vested in the State partakes the character of a dispute, which can be adjudicated only by the tribunal at the first instance and thereafter by a Division Bench of this Court exercising jurisdiction either under Article 226 or Article 227 in terms of Section 11 of the 1997 Act. However, by no means can the jurisdiction of the trial court be invoked nor can it adjudicate upon such dispute.
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The decisions in Jharna Ghosal (supra) and Bishnupada Khatua (supra) cited by Mr. Basu were both rendered at a point of time when the 1997 Act was not in existence.
The decision in Jharna Ghosal (supra) arose out of the West Bengal Estates Acquisition Act, 1953 (hereafter the 1953 Act). It was held in such decision by a coordinate Bench that where in a suit the principal issue relates to the question of title, a prayer for a declaration that the entries in the record of rights are wrong or statements in the plaint assailing the correctness of such entries, would not bring the suit within the purview of section 57B of the 1953 Act. It was also held in paragraph 9 as follows:
"9. In most of the suits involving determination of title to lands, the entries in the record-of-rights are challenged by one party and relied on by the other. A plaintiff may come with a case for establishment of his title and in that connection it may be necessary for him to prove that the entries in the record-of-rights are erroneous. If in such suits it is held that section 57B would apply, leading to the recording of orders of abatement of the suits, we are afraid, there would be no forum or process of law to establish title to land or property. Such cannot be the intention of the legislature. In these circumstances, we are of the view that the trial courts in the respective suits have illegally refused to exercise jurisdiction in holding erroneously that the suits have abated under section 57B of the Act."
(underlining for emphasis by us) The decision in Jharna Ghosal (supra), we are inclined to the view, was rendered keeping in mind the principle, 'ubi jus ibi remedium'. However, the tribunal is the forum which is empowered to even declare rights of raiyats. Such decision has no application here primarily because the suit instituted by the appellant is in respect of determination of questions of title in respect of 'Kathma 7 Dighi', which the appellant claims has not vested in the State. A dispute relating to vesting of an immovable property arising out of a claim that such property has not vested in the State having been raised, it can only be tried by the tribunal constituted under section 4 of the 1997 Act.
In Bishnupada Khatua (supra), it was held that the learned Judge of the appellate Court was in error in holding that the suit for declaration of title and permanent injunction cannot be decided by the civil court in view of the provisions of section 57B of the 1953 Act as the view of the learned Judge is contrary to the provisions of the said section as well as trend of decisions of this Court which were referred to by the learned advocate for the appellant. It was also held that the suit was maintainable before the civil court as the substantive claim of the plaintiffs is declaration of their title to the suit lands and permanent injunction restraining the defendants from interfering with their possession thereof.
The decision is clearly distinguishable on facts. Here substantive relief claimed by the appellant, inter alia, was for a declaration that 'Kathma Dighi' had not vested in the State. Such a declaration could not be had from the civil court in view of the specific bar created by the 1997 Act and it was the tribunal constituted under section 4 thereof that the appellant should have approached. 8
We are of the considered view that having regard to the specific provisions of the 1997 Act referred to above, the decisions relied on by Mr. Basu cannot come to the aid of the appellant.
Accordingly, the appeal stands dismissed. There shall be no order as to costs.
We, however, make it clear that the appellant shall be free to move the tribunal in accordance with law.
(DIPANKAR DATTA, J.) (ASHA ARORA, J.)