Calcutta High Court (Appellete Side)
Abu Bakkar Mondal And Ors vs The State Of West Bengal And Ors on 10 January, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
10.1.2019
KC(CL428)
W.P.L.R.T. 110 of 2015
Abu Bakkar Mondal and Ors.
-versus-
The State of West Bengal and Ors.
Mr. Biswarup Biswas...................For the petitioners.
Mr. Lalit Mohan Mahata................For the State.
Mr. Subhasis Misra,
Mr. Prodyot Kumar Roy.................For the respondent
no. 6.
An order dated 13th May, 2015 passed by the West Bengal Land Reforms and Tenancy Tribunal (hereafter the tribunal) dismissing O.A. 3617/14 (LRTT), being an original application presented before the tribunal by these petitioners, is under challenge in this writ petition on the ground that the tribunal erred in not exercising jurisdiction notwithstanding the fact that the petitioners had sufficient cause for not availing the alternative remedy provided by the relevant specified Act.
It appears that an order dated 16th July, 2014 passed by the Block Land and Land Reforms Officer, Nakashipara, District - Nadia (hereafter the BL&LRO in connection with Misc. Case No. 313 of 2014 was under challenge before the tribunal in O.A. 3617 of 2014. By such order the BL&LRO ordered as follows:
"Hence it is order that the suit plot no. 2174/3676 area 0.28 acres of land be recorded in favor of Kahira Bibi W/o Khalil Mondal in Khatian no. 2889 deleting from L.R. Khaitan no. 135 and rest 0.03 acres of land be recorded in the name of Chand Mondal S/o Uttam Mondal in Khatian no. 2898 deleting from the same Khatian."
The order of the BL&LRO is amenable to challenge before the appellate authority in terms of Section 54 of the West Bengal Land Reforms Act,1955. Admittedly, the petitioners did not avail of such remedy of appeal; instead 2 approached the tribunal seeking quashing of the order of the BL&LRO dated 16th July, 2014. Paragraph 10 of the original application reads as follows :
"10. Remedies Exhausted:
That the applicant declares that in such facts and circumstances since the impugned order dated 16.07.2014 passed by the concerned Block Land and Land Reforms Officer, Nakashipara, P.O. Bethuadahari P.S. Nakashipara, District - Nadia, violating the principles of Natural Justice and with gross suppression of material of facts the applicants have preferred this instant application before the Hon'ble Tribunal for redressed of their grievances."
The tribunal while considering the original application referred to Section 10(3) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereafter the Act) and held that such provision operates as a bar for entertainment of the original application, on facts and in the circumstances.
The order of the tribunal is assailed by Mr. Biswas, learned advocate for the petitioners by submitting that the tribunal overlooked the complete breach of natural justice that had occasioned on the part of the BL&LRO while proceeding with Misc. Case No. 313 of 2014 and also that the applicants before the BL&LRO had suppressed material facts.
The explanation furnished by the petitioners for not approaching the appellate authority, as pleaded in paragraph 10 of the original application, and as submitted by Mr. Biswas, have to be considered in the light of the provisions of Section 10(3) of the Act, reading as follows :
"Section 10: *** *** (3)Save as expressly provided in this Act, the Tribunal shall not admit an application referred to in sub-section (1) unless it is satisfied that -
(a) the applicant has availed of all remedial measures available to him under the relevant specified Act, and
(b) the remedial measures available under the provisions of the relevant specified Act are not adequate or shall cause undue hardship to the applicant."
The will of the people has been expressed by the legislature by enactment of the Act. The Act has conferred power on the tribunal to entertain an original 3 application under either of two circumstances, - (i) upon being satisfied that other remedial measures provided by the relevant specified Act have been availed of by the applicant or (ii) the remedial measures available under the relevant specified Act are not adequate and recourse to such remedy would cause undue hardship to the applicant.
On facts and in the circumstances of this case, the petitioners could have taken advantage of clause (b) of Section 10(3) of the Act. The petitioners could have pleaded that the appellate remedy provided by the relevant specified Act is inadequate or that the same would cause hardship. However, no pleading is found in the original application to that effect. If indeed the appellate authority's jurisdiction had been invoked, the petitioners could have demonstrated before it suppression of material fact by the applicant in Misc. Case No. 313 of 2014 or that the proceedings in such misc. case were conducted in breach of natural justice; if satisfied, the appellate authority could have remedied the situation by passing an appropriate order.
We are of the view that any of the three conditions (acts in violation of fundamental right, acts in breach of principles of natural justice and acts without jurisdiction) on the fulfillment whereof a writ court could be approached despite existence of an alternative remedy, would not ipso facto apply in respect of an original application before the tribunal because of the statutory mandate contained in sub-section (3) of Section 10 of the Act. Even though a proceeding may have been conducted in breach of principles of natural justice or if a fundamental right is affected, in order to insist upon exercise of jurisdiction by the tribunal in a case where the appellate remedy has not been exhausted, it requires a very strong case for the applicants to persuade the tribunal to hold why pursuing the appellate remedy was not reasonably practicable. 4
No such pleading is found in the original application and, therefore, the limited discretion that has been vested in the tribunal could not have been exercised for want of appropriate pleading.
In the circumstances, as aforesaid, we find no reason to hold that the tribunal committed any error of jurisdiction. On the contrary we find that the tribunal granted liberty to the petitioners to avail the appellate remedy and there was even a direction upon the appellate authority to deal with the application for condonation of delay liberally/sympathetically.
In the result, the order of the tribunal is upheld and the writ petition stands dismissed. This order of dismissal shall, however, not preclude the petitioners from availing the liberty granted by the tribunal, in accordance with law.
(DIPANKAR DATTA, J.) (BIBEK CHAUDHURI, J.)